Do I need probate?
There is no statutory requirement that probate be obtained in every case, but to ensure that a person seeking release of assets (eg bank accounts) has authority to deal with them, and to protect themselves against possible liability for handing assets to the wrong person, asset holders (eg banks, insurance companies or superannuation funds etc) may require probate before releasing or transferring assets. They will, however, often release modest amounts without the need for probate to be obtained. Real estate held solely in the name of the deceased person or as tenant in common will always require a grant in order to deal with it.
Can I get a copy of a will?
A copy of a will can be obtained if the will has been the subject of a grant of probate. Application forms can be downloaded from the Supreme Court website.
Alternatively, write to the Court requesting a copy of the will and give details of the deceased’s full name, his or her date of death, probate number and your name, address and telephone number.
A fee must be paid before the will is copied. Additional fees apply for retrieving older wills from storage.
Can I get a copy of a grant of probate?
A copy of a grant can be obtained in the same way that a copy of a will is requested. You will also need to indicate if you are an executor or a beneficiary.
A copy of the grant which includes the Court’s seal is called an exemplification. Two types are issued.
1. Details of the grant and any will relating to it - This is available to any person.
2. Details of the grant, any will relating to it and the inventory of the deceased’s assets that was filed with the application for the grant - Unless the death occurred prior to 1 January 1920, this is only available to executors, beneficiaries or any person(s) who has been authorised in writing to act on behalf of such a person.
What are letters of administration?
Letters of administration refers to a certificate issued by the Supreme Court that authorises a person to act as an executor when there is no will or when there is a problem with the will. An example of the latter is when the executor named in the will is deceased or is not capable of acting as an executor due to reasons of ill health, mental capacity or legal circumstances.
Documents required for applying for letters of administration include an administrator’s oath, an administrator’s bond, draft letters of administration and an affidavit of assets and liabilities. Other documents may also be required depending on the situation.
Can an executor outside New South Wales apply for probate?
Yes, however he or she must provide an address for service of documents within New South Wales. Where the application is for a grant of letters of administration, not a grant of probate, the administrator must reside within New South Wales.
How much does it cost?
The cost of applying for probate is determined by the Civil Procedure Regulation 2005 and also by the total value of the estate. A comprehensive schedule of fees relating to probate matters can be found on the Supreme Court website.
Can I apply for probate myself or do I have to use a solicitor?
This varies from person to person and depends greatly on the complexity of matters involved. The Public Trustee of NSW has a wealth of information on its web site on wills, trusts and executor services. This information could help you decide if you require the services of a solicitor or professional will-maker.
Where else can I get help?
The following people might be in a position to assist you with the process of applying for grant of probate, with the letters of administration process and wills.
- The probate duty registrar at the Supreme Court.
- The Community Legal Centre for witnessing documents.
- Lawaccess for general legal information regarding the application.
- The Public Trustee for will-making services or to search for a will deposited with the Public Trustee.
- Registry of Births Deaths and Marriages - this registry maintains a Will Register that could be used to search for a location of a will. The Registry of Births Deaths and Marriages do not keep copies of the will.
How long does it take?
Grants of Probate or Administration
A grant of probate will generally issue within 6 working days of the application being made unless some additional information is required. If further information is needed requests, referred to as requisitions, will generally be made within 3 working days.
The processing of the grant will be delayed until a response is received in answer to the requisition.
The Supreme Court website also provides information on probate grant applications at the end of a court list for the day.
Exemplification/Copy of Will
Applications for an Exemplification or Copy of a Will take a minimum of 14 days from the time the completed application is received, providing all details of the application are completed and fees are paid.
Do you have my father's/mother's/brother's/sisters will...they died 3 weeks ago?
Yes, if the will has been deposited with the Supreme Court of NSW for safe keeping. Please note that the person would have to be physically present at the Supreme Court to have lodged a will here. If a person never lived in NSW, the likelihood of a will being lodged with the Supreme Court of NSW is very low.
If the person lived in NSW and the will has not been lodged with the Supreme Court of NSW, the Public Trustee of NSW, the Registry of Births Deaths and Marriages and independent trustee companies may have a record of a will.
Can probate help me trace my family tree?
The best source of information for family tree purposes is the Registry of Births Deaths and Marriages, and State Records.
Can I see the Court’s probate file?
You can apply to have access to a Court file by completing an application form. These are available at the counter, Level 5, Law Courts Building.
An executor or administrator of a person’s estate, a beneficiary, a party to any proceeding related to the validity or interpretation of the will or the manner in which the administration of an estate is being carried out, a barrister or solicitor for any of those persons, and a person authorised in writing by any of them can have access to a Court file concerning them. Any other person must be given leave by a Court Registrar. In deciding whether or not to approve access, the Registrar would be guided by the matters set out in the Court’s Practice Note SC Gen 2.
Can I search the Court’s probate records?
A search can be made by attending at Level 5 of the Law Courts Building between 9.00am and 5.00pm, Monday - Friday. Staff at the Inquiries Counter will show you how a search can be carried out. No fees are charged for a search.
If you are not able to visit the Court, its staff will carry out a search for you and let you know the result. You can request, by telephone, a search for any application for probate filed from 1 January 1989. Requests for searches of applications filed before that day must be made in writing. The request should set out the full name of the deceased, his or her date of death and the last residential address of the deceased.
How do I stop probate from being granted?
The Supreme Court Rules provide for the filing of a caveat to prevent the granting of probate. A caveat remains in force for 6 months from the date on which it is filed. A caveat may be struck out by the Court if it is filed by a person who has no proper reason to file it. A letter or telephone call is not recognised as a means of preventing a grant from being made once the application is in order. Form 114 shows how a caveat can be set out.
What assets have to be disclosed in the inventory?
Generally, only the New South Wales assets have to be disclosed. Assets which do not form part of the estate, such as joint tenancies and assets outside the State, do not have to be disclosed but should be noted in the inventory of property.
Are valuations of assets required?
The Court does not require formal valuations, but nevertheless a realistic estimate of value should be made by the executor. For other purposes, such as taxation, it may be necessary to have assets formally valued.
Can the executor’s attorney swear affidavits in an application for probate?
No. The affidavit must be by the person making the application for probate.
Who can witness an affidavit in New South Wales and outside the State?
Within New South Wales affidavits must be sworn before a justice of the peace or solicitor. Outside New South Wales, affidavits must be sworn before a notary public, a person having authority to administer an oath in that country or place, or a British or Australian Consular Officer.
Can an affidavit have more than one deponent and can deponents swear it separately?
There may be multiple deponents to an affidavit and they may swear the affidavit on separate occasions or at different places. To see how an affidavit is set out, refer to Form 49*.
Who is able to swear the affidavit negativing de facto relationship?
This affidavit must be sworn by a person who can establish personal knowledge of the deceased and his or her living circumstances. It is not sufficient to be merely a relative. To see how this affidavit is set out, see form 98A*.
Can certificates be returned after grant?
Certificates that are annexed to an affidavit form part of the permanent record of the Court and are not usually released. A discretion may be exercised in appropriate cases such as where the certificate is from overseas and not readily replaceable. The death certificate is not released as it is fundamental to the grant. The original will is never released as section 30 of the Wills, Probate and Administration Act 1898* requires the Court to retain custody of it.
Why do I need an administration bond?
An administration bond is required to protect the interest of any minor (child) or other incapable beneficiary. It means that the administrator and/or sureties will pay a nominated amount if there is default in the administration of the estate. The sureties to the bond may be private persons (see below). The bond may be dispensed with or its amount reduced by the Court in certain circumstances.
Who can be a surety to an administration bond and what does the court require?
A surety may be any person within New South Wales who is independent of the administrator and can show that he or she has worthwhile assets that cover the amount required in the administration bond.
The question of the Supreme Court’s requirements with regard to administration bonds and sureties has for some time been under consideration. That consideration has been directed to looking for ways of reducing the costs and difficulties caused to applicants by the requirement of bonds and sureties, while at the same time continuing to provide suitable protection for the interests of disabled beneficiaries and in other appropriate cases. The Supreme Court Rules define a disabled person as a minor or incompetent person.
Briefly, a bond is an undertaking on oath by an administrator to properly perform his or her obligations in the administration of an estate with the sureties guaranteeing to pay to the Crown the amount of the bond in the event of the estate not being duly administered. The requirement for an administration bond and sureties to that bond are set out in the Wills Probate & Administration Act and the Supreme Court Rules and apply in respect of applications for grants on intestacy, with will annexed and for reseal. Two sureties are required to the bond. The Act also provides for a discretion to be exercised by the registrar to dispense with the bond, with one or more sureties or reduce the amount of the bond.
The following practice is currently in use:
Firstly, an adult beneficiary who is sui juris need only be served with notice of the intended application. If this is done the bond requirement will be dispensed with for their share. The notice should include a recital that the administration bond is to be dispensed with. Should the beneficiary wish to oppose the application it is up to them to do so in the usual manner.
Secondly, the current requirements for a bond with sureties will be retained in respect of the share of disabled persons, with the following exceptions:
(i) where an incompetent person has a manager appointed, that manager may consent to the bond being dispensed with; and
(ii) where the proposed administrator is not the legal guardian of a minor beneficiary, that minor’s legal guardian may consent to the bond being dispensed with.
In this instance the consent must be in terms of prescribed form 101 suitably amended, and it must be stressed, that it is not intended in the case of a disabled beneficiary, that the bond will be dispensed with upon mere service of notice (on the manager or legal guardian) as it would be in the case of an adult beneficiary who is sui juris. There must be a proper consent filed or the bond will be required as previously.
Thirdly, any requirement for a bond in respect of unpaid unsecured debts is dispensed with.
It is intended that at all times the registrar will retain his discretion to require a bond with sureties in any estate where it seems appropriate.
If there are any queries concerning this new practice they may be discussed by contacting the Probate Registry on 02-9230 8111 or by attending at the Registry at level 5, Law Courts Building, Queens Square, Sydney during office hours.
Can the executor resign after obtaining probate?
A person may resign or retire from being an executor if he or she appoints the Public Trustee or a trustee company in his or her place. Otherwise an executor is generally not allowed to resign or retire as executor. If the executor is just holding the assets as a trustee, he or she may retire (as trustee) and appoint a new trustee.
Do I need to advertise before distributing the estate?
Not necessarily, but an executor/administrator may in certain circumstances obtain a personal protection from any liability from claims of which he or she has no knowledge if a proper notice has been published. If an executor or administrator decides to advertise, the notice should be in the terms shown in form 121* and, if the deceased was a resident of New South Wales, published in a newspaper circulating in the district where the deceased resided.
What are probate “accounts” and do I need to lodge them?
Every person who is administering an estate is under a duty to account to the beneficiaries but whether formal accounts are required to be filed in Court depends on whether the estate comes within the categories set out in section 85 of the Wills, Probate and Administration Act 1898*.
What do I do when a later will is found after probate has been granted?
You must first make an application to the Court to revoke the grant and, second, also make a fresh application for probate of the later will. Even though they are separate applications the Court will deal with them simultaneously.
What happens when the executor is not capable of applying for probate (for example, due to ill health)?
If the executor is not the sole beneficiary, one of the beneficiaries should apply for administration with will annexed. If the executor is also the sole beneficiary, the application is usually brought by the executor’s next of kin. These grants may be subject to limitations or conditions imposed by the Court.
Contacting the Probate Office
Law Courts Building
SYDNEY NSW 2000
DX 829 SYDNEY
To lodge documents, to search Court probate records, to obtain application forms, to make any other inquiry about probate or to discuss a requisition:
Level 5, Law Courts Building
184 Philip Street
SYDNEY NSW 2000
A staff member will be able to assist you with procedural guidance (but not legal advice) between 9.00am and 5.00pm. A Probate Duty Registrar will also be able to assist you (but not with legal advice) between 9.00am - 5.00pm.
612 9230 8111
612 9230 8499
*The following addresses may also be used to access information concerning New South Wales legislation, forms required to be used and the Supreme Court (including current filing fees):
Legislation and the Supreme Court Rules:
(Or go to http://www.lawlink.nsw.gov.au/sc, then click on the Forms and Fees link on the Left hand side menu and then click on Prescribed Forms.)
Supreme Court (including fees):
(Go to http://www.lawlink.nsw.gov.au/sc, then click on the Forms and Fees link.)
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The contents of this leaflet are of a general nature only and should not be relied on as being an exhaustive description of the law.