Probate in NSW


Where a deceased person has left assets in New South Wales, a grant from the Supreme Court of New South Wales is required in order to deal with those assets and administer the deceased person’s estate. The legal representative of an estate, whether they are an executor or an administrator, is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the will or if there is no will then the rules of intestacy.

The type of grant that is made will depend upon whether or not the deceased person left a will and who is applying for a grant. Where the deceased has left a will, the executor or executors named in the will may apply for a grant of Probate. Where the deceased has left a will but the executor or executors named in the will are unable or unwilling to obtain a grant of Probate, then an interested person such as a beneficiary in the will may apply for a grant of Administration with the Will annexed.

Where the deceased has died without leaving a will, then the rules of intestacy will apply. In those circumstances an interested person, such as a person who is entitled under the rules of intestacy, may apply for a grant of Letters of Administration. For more information about this type of grant please see our page on applying for a grant of Letters of Administration in New South Wales.

Generally, grants in relation to estates allow the executor or administrator to deal with any aspect of the estate that is necessary for the administration. However, in some circumstances, such as when the validity of a will is in dispute, the Court may make a limited grant which allows the administrator to only deal with certain assets or sets a time limit on the administration.

If the deceased lived in another state but left assets in New South Wales, in most cases it will be necessary to obtain a grant in the state where the deceased lived and then obtain a reseal of that grant from the Supreme Court of New South Wales.

If you wish to discuss making an application for a grant of Probate or whether it is necessary to apply for a grant of Probate please call one of our lawyers on 1300 038 223.

What is probate?

Probate is an order made by the Supreme Court of NSW that the executor named in the deceased’s Will is entitled to administer the deceased’s estate. This enables the executor to collect the estate assets and distribute the estate in accordance with a deceased person’s Will.

The executor of an estate is the deceased’s representative and is responsible for:

  • collecting the deceased’s assets;
  • paying any of the deceased’s liabilities; and
  • distributing the deceased’s assets to the beneficiaries, pursuant to the deceased’s Will.

A grant of Probate is a legal document issued by the Supreme Court of NSW. This document allows the executor to deal with the deceased’s estate in accordance with the deceased’s Will.

Once Probate has been granted, the executor can submit this legal document (the grant of Probate) to the various asset holders to collect the deceased’s assets. Likewise the executor can submit the grant of Probate to the debtors of the deceased’s estate.

If the deceased held assets in NSW, then the relevant Court to apply to for a grant of Probate is the Supreme Court of NSW. If the deceased did not hold assets in NSW, then a grant of Probate will not be made by the Supreme Court of NSW.

The executor may be required to apply for a grant of Probate in each place the deceased held assets or to apply for a reseal of the original grant of Probate, if the deceased held assets outside NSW or overseas.

Where an application for a grant of Probate is not contested, the application will be considered by a Registrar of the Supreme Court in Chambers. If an application for a grant of Probate is not contested, then the grant of Probate is known as a grant in common form.

It may not be necessary to apply for a grant of Probate. It depends on the type and value of the assets held in NSW and the requirements of the various asset holders. In some cases, asset holders may release assets of lower values without requiring Probate to be obtained.

If you wish to discuss making an application for a grant of Probate or whether it is necessary to apply for a grant of Probate please call one of our lawyers on 1300 038 223.

Who is entitled to apply for a grant of probate?

If you are the person who is named in the deceased’s Will as an executor, then you are entitled to apply for a grant of Probate.

However if there is no executor appointed in the deceased’s Will, you are unable to apply for a grant of Probate. In that case, a beneficiary named in the deceased’s Will can apply to the Court for a grant of letters of administration with the Will annexed.

In some cases, the deceased will nominate more than one person to act as his executor. Also the deceased may nominate alternate executors, for example in the event that the deceased’s first choice of executor dies before him, then a substituted executor may be appointed in the deceased’s Will. In that case, it will be necessary to submit to the Court a copy of the executor’s death certificate. It is important to check that all the relevant conditions are met if an alternate executor is appointed, otherwise that appointment will not take effect and the alternate executor will not be able to apply for a grant of Probate.

If more than one person is named as executor, then generally all of the executors will make the application for a grant of Probate. If one of the executors has died or does not wish to apply for Probate, then the remaining executors will apply for a grant of Probate. An explanation must be given to the Court as to why not all of the executors are applying for a grant of Probate.

An explanation will also be needed if the executor’s name differs to the name in the deceased’s Will. For instance if the executor married after the Will was drafted, the executor must submit a copy of his marriage certificate with his application for a grant of Probate.

If an executor does not wish to apply for a grant of Probate, they may renounce probate. In that case, if there is more than one executor appointed under the deceased’s Will, the remaining executors are able to apply for a grant of Probate. However if the executor who does not wish to apply for a grant of Probate is the only named executor, then a substitute executor may be able to apply for a grant. A form must be completed by the executor who does not wish to apply for Probate and generally this form is submitted with the application for a grant of Probate by the executor who is applying for Probate.

If you would like to discuss whether you are entitled to apply for a grant of Probate in NSW please call one of our lawyers on 1300 038 223.

When is a grant of probate required?

The executor of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the will. Where a deceased person has left assets in New South Wales, a grant of Probate from the Supreme Court of New South Wales is required in order to deal with those assets and administer the deceased person’s estate.

A grant of Probate is a document which authorises the executor to deal with the deceased’s assets and in most cases institutions (such as banks) and persons who hold the deceased’s assets will require a grant of Probate to be obtained before they allow the executor access to those assets. The Supreme Court of New South Wales will only make a grant if the deceased left assets in New South Wales. If the deceased lived in another state but left assets in New South Wales then you may apply for a reseal of the original grant that was obtained in the deceased’s home state.

In most cases where a deceased person has left assets in New South Wales a grant of Probate will be necessary. However, a grant is not necessary in every case. Whether a grant is necessary will depend on the size, type and nature of the deceased’s assets. For example, where the deceased has not left any real estate and only had funds in a financial institution, depending on the amount of funds, the financial institution may not require a grant of Probate to release the funds. Instead they may simply require proof of death of the deceased and identification documents from the person who is enquiring. If you are unsure whether the financial institution requires a grant of Probate you should make enquiries to see what criteria needs to be met.

In some circumstances even if the deceased died having owned real estate, a grant of Probate may still not be necessary. For example, where the deceased died having owned property with another person as a joint tenant, then the deceased’s share of the property does not form part of their estate. Instead, the deceased’s share of the property automatically passes to the surviving joint tenant.

It is very important that you make reasonable enquiries to determine what assets the deceased owned at the date of death so that you can make an informed decision about whether a grant of Probate is required. If you are unsure about the process please contact Armstrong Legal and we can assist you with making enquiries and applying for a grant of Probate if required.

What are the rights and duties of an administrator?

The executor or administrator of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the deceased’s will or the rules of intestacy where the deceased did not leave a will.

The duties of executors can be summarised as follows:

  • To take custody and see to the disposal of the deceased’s body;
  • To collect the assets of the estate;
  • To realise the assets of the estate;
  • To pay the testamentary expenses and liabilities of the estate;
  • To administer the estate in accordance with the will;
  • To keep proper accounts; and
  • To carry on or defend against causes of action in respect of the estate (please note that the survival of contractual rights allows executors to enforce or be sued on contracts entered into by the deceased during their lifetime).
  • Executors have a fiduciary duty to the beneficiaries of the estate and must discharge their duties in the best interests of the beneficiaries.

An executor’s role is largely gratuitous, meaning that they are expected to carry out their duties without seeking remuneration from the estate. In many cases an executor is also a beneficiary of the estate and therefore they will already receive a benefit. However, Section 86 of the Probate and Administration ACT 1898 provides that an executor may apply to the Supreme Court of New South Wales for commission out of the estate for their “pains and trouble as is just and reasonable”.

The application for commission will be determined by a Registrar of the Supreme Court of New South Wales who will have regard to:

  • the amount of capital realised;
  • the amount of income collected;
  • the value of any assets transferred to beneficiaries; and
  • where a business was carried on — the gross receipts and net profit earned or loss incurred, during the period of the accounts.

The amount of commission will be determined as a percentage of the above amounts. In circumstances where the executor or beneficiaries do not agree with the Registrar’s determination, it may be appealed with the appeal heard by a Judge of the Supreme Court of New South Wales.

To apply for commission, an executor must pass the estate accounts by filing them with the application. The beneficiaries of the estate must be notified of the application so that they have an opportunity to make submissions and objections to the application.

Who can apply for a grant of administration?

If the deceased does not have a Will, then it is necessary for someone to apply for a grant of administration. Generally you need standing to apply for a grant of administration.

Normally, the surviving spouse or de facto partner of the deceased will apply for a grant of administration.

To be classified as a de facto partner for the purposes of receiving a share of the deceased’s estate you must be in a registered relationship with the deceased (registered under the Relationships Register ACT 2010), or you must be in a de facto relationship with the deceased that:

  • Was ongoing for a continuous period of two years; or
  • Resulted in the birth of a child.

Generally if you are entitled to a share or all of the deceased’s estate, you are entitled to apply for a grant of administration.

Where there is no spouse or defacto partner of the deceased, the following relatives can inherit in this order:

  • Children of the deceased (including children of any predeceased children);
  • Parents of the deceased;
  • Brothers and sisters of the deceased (including children of any predeceased brother or sister);
  • Grandparents of the deceased;
  • Aunts and uncles of the deceased (including children of any predeceased aunt or uncle);
  • Cousins of the deceased.

If you are not entitled to a share of the deceased’s estate and you are one of the deceased’s relatives, you are not entitled to apply for a grant of Administration and Administration will not be granted to you. That said, if you are the attorney of a person who is entitled, then you may be granted Administration. Also a grant may be made to a guardian of a minor (a child under the age of 18 years old) or a person under a legal incapacity, if that person is entitled to a grant but is unable to apply themselves.

In addition, a credit may apply for a grant but usually only when there is no next of kin who is entitled to a share of the estate. These applications are however rare.

If you are thinking of applying for a grant of Administration please give one of our lawyers a call on 1300 038 223 and we will assist you.

Applying for a grant of probate

Has your loved one recently passed away? Are you thinking of applying to the Court for a grant of Probate?

The following is a summary of the application process for applying for a grant of Probate in NSW.

First we need to establish whether you are eligible to apply for a grant of Probate. Generally speaking, the person who applies for a grant of Probate is the executor named in the deceased’s Will. The executor is over the age of 18 years old. In some cases, a person who is not the executor appointed under the deceased’s Will can apply for a grant of Probate if certain conditions are met. For further information regarding whether you can apply for a grant of Probate see our article titled “Who is entitled to apply for a grant of Probate?”

Second, before you can apply to the Court for a grant of Probate, you need to publish a notice of your intention to apply for Probate. This notice is published on the NSW Court’s Online Registry. You must wait 14 days after the publication of your notice before you lodge your application for a grant of Probate with the Supreme Court. Once you publish a notice on the Online Court Registry, a case number will be issued to you. This case number is relevant for completing the various Court documents to be lodged with the Supreme Court.

The purpose of the Notice of Intention to Apply for Probate is to alert creditors that you will be making an application to the Court for a grant of Probate. This will give creditors time to make claims on the estate. Creditors can do this by contacting the executor or the person who will be making the Probate application.

Once a Notice of Intention to Apply for Probate is published, the executor will need to complete various documents required by the Court to apply for a grant of Probate.

If you require assistance with complete the relevant Court documents to apply for a grant of Probate, please call one of our experienced lawyers on 1300 038 223. We are more than happy to assist you with making an application to the Supreme Court of NSW for a grant of Probate.

When is a grant of administration required?

A grant of Letters of Administration is required to enable an administrator of an estate to collect and distribute the assets of a deceased person.

When a deceased person dies without a Will, an application for a grant of Letters of Administration is made.

Also if there is no executor to apply for a grant of Probate, an application for a grant of Letters of Administration with the Will annexed is made.

An administrator will provide the grant of Letters of Administration to the asset holders or debtors of the deceased and request that they transfer assets or release monies of the deceased to the administrator.

The nature and value of the estate will determine whether it is necessary to obtain a grant of Letters of Administration. An administrator is not legally required to obtain a grant of letters of administration in every matter.

It is important to contact the asset holders to find out their requirements for releasing the deceased’s assets. At times, certain asset holders may release assets to the deceased’s next of kin without the need for a grant of Letters of Administration being made. This may occur if the assets held are modest amounts.

Each asset holder is likely to have different requirements. Therefore it is important to contact all the asset holders of the deceased to determine their requirements. The next of kin should also contact the deceased’s superannuation funds and insurance companies. The superannuation trustee and insurance fund may or may not require a grant of Letters of Administration in order to decide who to pay the deceased’s superannuation or insurance monies to.

At times the Department of Lands may transfer property without the need for a grant of Letters of Administration. For example if the deceased owned property as Joint Tenants with another person, then a grant of Letters of Administration is not required. The deceased’s property will automatically pass to the surviving joint tenant on the death of the deceased. However in this case, you will need to complete and lodge other paperwork with the Department of Lands. If you require assistance with completing this paperwork, please contact our office.

By contrast if the deceased owned property solely or as tenants in common with another person, then a grant of Letters of Administration will be required to transfer and/or sell the deceased’s property.

Should you wish to discuss whether a grant of Letters of Administration is required, please contact one of our experienced lawyers on 1300 038 223

Steps in applying for a grant of probate

The purpose of obtaining Probate is to enable the executor to collect the estate assets and distribute the estate in accordance with a deceased person’s Will.

The first step is to determine the assets and liabilities of the deceased.

Once the estate assets have been determined, it is necessary to contact the assets holders to find out what their requirements are to release the assets to the executor. Some asset holders may not require a grant of Probate in order to release the estate assets to the executor. Whereas other asset holders will not release any assets until they receive the grant of Probate.

If Probate is required, the executor must take steps to apply for a grant of Probate from the Supreme Court of NSW.

The executor must publish a notice of intended application for Probate on the Online Court Registry. An application for Probate can be made after 14 days of publication of that Notice. We can assist you with publishing this Notice if you are the executor and are taking steps to apply for Probate.

The executor must also obtain an original death certificate to be lodged with the Supreme Court.

There are various Court documents which must be completed in order to apply for a grant of Probate. These Court documents include the Administrator’s Affidavit, which will contain details of all of the beneficiaries who are entitled to a share of the deceased’s estate and an inventory of property, listing the estate assets. The estate liabilities are also required to be listed in the Administrator’s Affidavit.

Once the relevant Court documents have been completed, they are submitted to the Supreme Court for consideration. In addition, the deceased’s original Will is required to be submitted to the Supreme Court with the Probate application.

We regularly assist executors with applying for a grant of Probate. If you wish to discuss the steps in applying for a grant of Probate in greater detail please do not hesitate to contact our experienced legal team on 1300 038 223. We are able to assist you with applying for a grant of Probate.

Steps in applying for a grant of letters of administration

The purpose of obtaining a grant of Letters of Administration is to enable the administrator to collect the estate assets and distribute the estate in accordance with the laws of intestacy. If the deceased died without a Will, the legislation sets out who is entitled to a share of the deceased’s estate. This is what we mean by “the laws of intestacy”.

It can be quite complex to apply for a grant of Letters of Administration.

You must also determine the assets and liabilities of the deceased.

The person intending to apply for Administration is required to publish a notice of their intention to apply for a grant of Letters of Administration on the Court’s online registry. An application for a grant of Letters of Administration can be made after 14 days of publication of that Notice. If you require assistance with publishing this notice, please do not hesitate to contact our office.

You must also determine who is entitled to the deceased’s estate under the laws of intestacy.

There are various Court documents which must be completed and lodged with the Supreme Court of NSW to apply for a grant of Letters of Administration. These Court documents include the Administrator’s Affidavit, which will contain details of all of the beneficiaries who are entitled to a share of the deceased’s estate and an inventory of property, listing the estate assets. The estate liabilities are also required to be listed in the Administrator’s Affidavit.

Once the relevant Court documents have been completed, they are submitted to the Supreme Court for consideration.

Given the complexity involved in obtaining a grant of Letters of Administration, we recommended that you seek legal advice if you require assistance with obtaining a grant of Letters of Administration. We regularly assist clients to apply for grants of Letters of Administration.

If you wish to discuss the steps in applying for a grant of Letters of Administration in greater detail please do not hesitate to contact our experienced legal team on 1300 038 223.

Time frame to apply for a grant of letters of administration

If the deceased person died without leaving a Will, it may be necessary to obtain a grant of Letters of Administration depending on the nature and value of the estate assets.

A grant of Letters of Administration enables the administrator of an estate to collect the assets of the deceased person and distribute the estate. If the deceased died without a Will, the legislation sets out who is entitled to a share of the deceased’s estate.

There is a time limit to apply for a grant of Letters of Administration. The legislation sets out the time frame for applying for a grant of Letters of Administration. According to Part 78 Rule 16 of the Supreme Court Rules 1970, an application for a grant of Letters of Administration should be filed with the Supreme Court of NSW within 6 months of the date the deceased died.

In the event that an application for a grant of Letters of Administration is not lodged with the Court within 6 months of the date of death, the applicant must provide the Court with an explanation for the delay. The applicant is required to lodge an affidavit which explains the reasons for the delay in lodging the application for a grant of Letters of Administration.

This explanation can be included in the Administrator’s Affidavit or in a separate affidavit which explains the delay. We can assist you with preparing this affidavit if you require us to.

Applying for a grant of Letters of Administration can be quite complex. See our article Steps in Applying for a Grant of Letter of Administration

Due to the complexity involved, we recommended that you seek legal advice if you wish to make an application for a grant of Letters of Administration. We regularly assist clients to apply for grants of Letters of Administration. In addition we help clients with preparing affidavits explaining reasons for the delay in lodging applications for a grant of Letters of Administration.

Should you wish to discuss the time frame in applying for a grant of Letters of Administration with us please do not hesitate to contact one of our lawyers on 1300 038 223.

How long does it take to obtain probate?

Probate is an order made by the Supreme Court of NSW that the executor named in the deceased’s Will is entitled to administer the deceased’s estate.

It can take some time to obtain a grant of Probate in NSW and it is dependent on how quickly the Court processes the application once it has been lodged.

If you are intending to apply for a grant of Probate, the first step is to publish a notice of intended application for Probate on the Court’s online registry. An application for Probate may be made after 14 days of publishing the notice on the Court’s online registry.

Prior to filing an application for Probate in the Supreme Court, it will also be necessary to obtain details of all of the deceased’s assets and liabilities. You must include in the Probate application a list of the deceased’s assets and liabilities as at the date of death. It may take some time for the asset holders to confirm the value of the deceased’s assets as at the date of death. Further it may take some time to determine the value of the deceased’s liabilities as at the date of death. This may cause a delay in lodging the Probate application.

Currently the Supreme Court publishes the processing time for Probate applications on their website. According to the Supreme Court, the processing time is the number of working days between the date the application is filed and the date the Court issues a grant of Probate or a requisition for further information.

If the application for a grant of Probate is not contested and is relatively simple, then currently the Court is taking approximately 10 working days from the date of filing the application to process the Probate application.

In some cases, once a Probate application is filed with the Supreme Court, the Court may issue a requisition or requisitions. A requisition is a request for additional information. If a requisition is issued by the Court, it will take longer to obtain Probate. Currently the Court is taking approximately 10 working days from the date of receiving additional information to process Probate applications.

The Court’s processing time will depend on the number of applications the Supreme Court receives and the availability of Registrars to consider filed applications.

In the case of a complex application, the Court may take longer in order to assess the Probate application. A more complex application may include an application where there is only a copy of the Will and the original cannot be located, or where there is an informal Will.

If you have any questions regarding the time frame for applying for a grant of Probate, please call one of our experienced lawyers on 1300 038 223.

Costs associated with obtaining probate

Probate is an order made by the Supreme Court of NSW that the executor named in the deceased’s Will is entitled to administer the deceased’s estate. This enables the executor to collect the estate assets and distribute the estate in accordance with a deceased person’s Will.

If the deceased lived in NSW and held assets in NSW, the executor is required to obtain the grant of Probate from the Supreme Court of NSW. We are able to assist executors to obtain the grant of Probate from the Supreme Court. In addition we are able to assist executors to administer the deceased’s estate once Probate has been granted.

If you are the executor, you are entitled to have your legal costs associated with obtaining Probate paid from the deceased’s estate.

For the work done up to the date the Supreme Court grants Probate, legal fees are regulated. The legislation sets out how much lawyers can charge for the costs associated with obtaining the grant of Probate. See Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 for a schedule of the prescribed costs of obtaining a grant of Probate.

The prescribed legal costs associated with obtaining the grant of Probate are based on a sliding scale which depends on the value of the estate assets.

Whereas the costs of administering the estate once Probate has been granted are not regulated. There are no prescribed rates which apply to the costs of administering the estate.

Lawyers are required to disclose to all clients their legal fees prior to commencing any work for their clients. However there is an exception to the disclosure requirements. If total legal fees are likely to be less than $750, the disclosure requirements do not apply.

If you wish to discuss the costs associated with obtaining Probate please call one of our lawyers on 1300 038 223. We are able to provide you with an estimate of the legal costs associated with obtaining Probate. Further we are able to discuss the prescribed costs associated with obtaining Probate with you and to explain how legal fees would be charged if you were to engage us to assist you with obtaining Probate.

Costs associated with obtaining letters of administration

Applying for a grant of Letters of Administration can be quite complex. We are able to assist you to apply for a grant of Letters of Administration and to administer the estate once a grant has been made.

An application for Letters of Administration is made when the deceased did not have a Will.

The purpose of obtaining a grant of Letters of Administration is to enable the administrator to collect the estate assets and distribute the estate in accordance with the legislation. The legislation sets out who is entitled to a share of the deceased’s estate if the deceased died without a Will.

The relevant application for a grant of Letters of Administration is lodged with the Supreme Court of NSW.

If you are the administrator, you are entitled to have your legal costs associated with obtaining a grant of Letters of Administration paid from the deceased’s estate.

Legal fees are regulated for the work done up to the date that the Supreme Court of NSW grants Letters of Administration. There are prescribed costs that lawyers can charge for the costs of obtaining a grant of Letters of Administration. These costs are set out in Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015.

The legal costs associated with obtaining a grant of Letters of Administration are based on a sliding scale. This scale depends on the value of the assets of the deceased.

By contrast, the costs of administering the estate once a grant of Letters of Administration has been made are not regulated. This means that there are no prescribed rates which apply to the costs of administering the estate.

Before commencing any work for their clients, lawyers must disclose their legal fees. There is an exception to the disclosure requirements if total legal fees are likely to not exceed $750.

To discuss the costs associated with obtaining a grant of Letters of Administration in further detail, please contact us on 1300 038 223 and one of our experienced lawyers can assist you.

We will provide you with an estimate of the legal costs associated with obtaining a grant of Letters of Administration. Further we can discuss the prescribed costs associated with obtaining a grant of Letters of Administration with you. Please do not hesitate to contact our team if you wish to discuss this matter further.

Revocation of a grant

Where a beneficiary wants an executor removed (whether because of negligence, fraud or generally not being satisfied with the way the estate is being administered), they may apply to the Supreme Court of NSW to have the grant of probate or administration revoked.

An application to revoke a grant is made by Statement of Claim which names the executor as the defendant. Supreme Court Rules Part 78 Rule 57 requires that a Notice of Proceedings be filed and served on all interested persons, such as other beneficiaries.

When determining an application for a revocation of a grant, the court will consider whether the proper administration of the estate has been put in jeopardy or prevented by the executor. This may be due to the executor’s acts or omissions and may have been purposeful or simply due to the executor being unable to perform their duties (for example due to ill health).

The court has revoked grants where the executor has failed to complete the administration of the estate without good reason, where they have consistently failed to pass accounts, where disputes between co-executors has prevented the administration of the estate and where there is a real conflict of interest between the executor’s duties and their personal interests.

When making an application for a revocation of a grant, consideration should be given to seeking alternate relief in case the court decides not to revoke the grant. For instance, if the grant is not revoked the applicant beneficiary may still wish for certain steps to be taken in the administration of the estate. They may seek such orders regarding the administration of the estate pursuant to Rule 54.3 of the Uniform Civil Procedure Rules 2005 (NSW).

Rule 54.3 of the Uniform Civil Procedure Rules 2005 (NSW) allows for

  • Proceedings to be brought for any relief which could be granted in administration proceedings.
  • Proceedings to be brought to determine any question which could be determined in administration proceedings;
  • Proceedings to be brought to order the executor or administrator to furnish accounts, verify accounts, pay funds of the estate or trust into court or to do or abstain from doing any act;
  • Proceedings to be brought for an order approving any sale, purchase, compromise or other transaction by an executor or trustee; directing that any act be done in the administration of the estate and directing that any act be done in the execution of a trust.

The role of the executor

The executor plays an important role in a deceased’s estate. The executor is a person who is appointed in the deceased’s Will to administer the deceased’s estate.

In NSW the executor of a deceased person’s estate must collect all of the deceased’s assets, pay any outstanding liabilities that the deceased had and distribute the deceased’s assets to the beneficiaries.

In effect this means that the person who is named as the executor must collect the deceased’s assets and personal possessions, pay out all of the deceased’s debts and give the deceased’s assets to the persons who the deceased wanted them to go to.

The executor may be required to obtain a grant of Probate, depending on the nature and value of the deceased’s assets. A grant of Probate will allow the executor to administer the deceased’s estate, that is to manage the deceased’s estate pursuant to the deceased’s Will. The various asset holders may require a grant of Probate in order to release the deceased’s assets to the executor.

If you are appointed as an executor for a deceased person, you have an important responsibility. Once Probate has been granted, an executor cannot renounce Probate except in certain circumstances. Therefore before accepting an appointment as executor, you should seriously consider whether you are able to fulfil the executor’s responsibilities and administer the deceased’s estate. This should be done before you apply for a grant of Probate.

An executor can be removed once Probate has been granted if the Court revokes the grant of Probate. The only other way an executor can retire after Probate has been granted, is to appoint the NSW Trustee and Guardian to act as executor.

In summary the executor’s role involves:

  • Compiling a list of the deceased’s assets and liabilities;
  • Preparing and lodging the Probate application with the Supreme Court of NSW;
  • Collecting the deceased’s assets;
  • Paying the deceased’s liabilities and any estate expenses;
  • Preparing a distribution statement;
  • Distributing the deceased’s estate pursuant to the deceased’s Will.

If you have been named as an executor in a Will or you wish to discuss the role of an executor, please give one of our lawyers a call on 1300 038 223.

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

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