Probate - How can the Court assist you?
The Supreme Court:
- maintains a register of wills deposited with it for safe keeping;
- considers who can deal with a deceased person’s estate; and
- gives access to records about how a deceased person’s assets have been dealt with including, when required, approving a statement of income and expenditure and statement of distribution of assets to beneficiaries.
What needs to be done before the assets of a deceased person can be dealt with?
When a person dies, somebody, usually the executor of the person’s will, has to deal with the person’s estate. That generally involves:
- collecting in all the assets;
- paying any debts (including income tax); and
- sharing out the estate between people who are entitled to it.
A grant of probate or of letters of administration is the authority necessary to deal with a person’s estate in that way.
The Probate Office will consider an application for probate or letters of administration made by an executor or next of kin. If the application is in order the Court will issue a document known as a grant of representation. This is often referred to as getting probate. The grant will allow one or more people to deal with the estate.
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.
What is required to obtain a grant ?
While the Court does not give legal advice, nor will its staff complete forms for any person, the following procedural information should assist a person making an application for a grant of probate or letters of administration.
Forms appropriate to apply for a grant may be downloaded from the Internet or purchased from a legal stationery supplier. Addresses for stationery suppliers can be found in the Yellow Pages directory.
The Supreme Court website at:
will give access to the prescribed forms, filing fee structure, current legislation, rules of procedure and other information.
The forms usually required for a simple probate application are numbers 90, 91, 95, 96 and 97, and for administration where there is intestacy, form numbers 90, 92, 98, 98A, 101, 102 and 103.
Forms 91 and 92 relate to the notice of intended application for grant which must be published prior to any application being made. This notice may be published in a newspaper circulating in the district where the deceased resided (within New South Wales) or in a Sydney daily newspaper.
There is no time limit on making an application to the Court however, if there is a delay of more than 6 months (from the date of death) this ought to be explained. Completed forms may be either typed or in legible print. In addition, you will need to file the will, death certificate and any other relevant certificates, as appropriate. Only original documents are accepted (no photocopies or extract certificates) and these will not be released or returned after the grant is made. They remain part of the permanent record of the Court.
There is no filing fee payable in respect of an estate with a sworn gross value less than $50,000, however a fee is payable in respect of estates larger than this. Fees are subject to change and for current fees payable in respect of larger estates consult the website or telephone the Court.
The completed application may be filed with the Court either in person or by post. Prior to filing the application it is important that you check the completed documents to ensure that all relevant information is included and that there are no omissions or errors. Once an application has been filed with the Court it will be examined within 3 working days. If it is in order the grant will be made at that time and the parchment prepared and mailed to you within a further 3 working days. If the application is not in order, further requirements are raised at the time of examination and will be mailed to you for answering.
Accessing probate records - what is involved?
All records in probate are kept alphabetically according to the family name of the deceased.
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. For this purpose, a search fee does apply. 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.
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 are available on level 5, Law Courts Building.
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. If the will is an older one and has been stored away from the Court and if it needs to be retrieved by the Court there is an additional fee. You may also contact State Records NSW on 02-9673 1788 directly or refer to their website http://www.records.nsw.gov.au/staterecords/.
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.
The fee for a copy of a grant should be paid when the request is made. Again, if the grant is an older one, an additional fee will apply to cover the cost of retrieving it from storage.
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. A fee does apply to inspect documents.
Probate Office Change of Practice
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 disable 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 disable 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.
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