Frequently asked questions
A grant of Probate provides a legal document and authority for an executor/s under a Will to administer a deceased’s estate in accordance with their Will. This may be necessary depending on the size, value and types of assets in the Estate. Probate is necessary if the deceased own real estate as a tenant in common or in their own right. A property is usually required to be transferred into the name of the executor in order for an executor to sell any real estate and to divide the proceeds of the sale in accordance with the will of the deceased. If the estate is small and the assets comprise of furniture and personal effects and a modest amount in a bank (say up to $50,000 to100,000 and depending on the bank’s requirements), Probate may not be necessary and the funds may be released by a bank or financial institution, following production of the will, death certificate, evidence of the executor’s identity and a signed indemnity to the bank in the form provided by them.
An Application for Probate is required to be filed within six months of the datet of death of the deceased. If an Application is filed after six months, an explanation will need to be provided to the court by way of an Affidavit of Delay explaining the circumstances of delay.
If an executor cannot or is unwilling to be the executor they can “renounce probate”. We can assist you with making an application to renounce probate, where a substitute executor under the will can take over the role as the executor. This is required to be done before probate is granted by the court.
We can assist in obtaining a grant of probate and ask that you provide us with the original will (if not already in our custody), original death certificate of the deceased, copies and/or details of the estate, including bank account statements, share statements, details of nursing home bonds, details of any liabilities, loans and so forth.
The filing fee for probate in NSW is dependent on the value of the estate and can be found here.
As at 1 July 2024 the filing fees are as follows, (note that they increase on 1 July each year) for estate values as follows:
For Probate with an estate value that is less than $100,000, the filing fee is nil
For Probate with an estate value that is $100,000 or more, but less than $250,000, the filing fee is $899.
For Probate with an estate value that is $250,000 or more, but less than $500,000, the filing fee is $1,221.
For Probate with an estate value that is $500,000 or more, but less than $1,000,000, the filing fee is $1,873.
For Probate with an estate value that is $1,000,000 but less than $2,000,000, the filing fee is $2,494.
For Probate with an estate value that is $2,000,000 or more but less than $5,000,000, the filing fee is $4,158.
For Probate with an estate value that is $5,000,000 or more, the filing fee is $6,931.
Generally, superannuation and life insurance does is not included in the value of the estate, rather, is dealt with separately and directly with the company in which the policy is with.
The legal fees for obtaining the grant of probate in NSW are prescribed by the Legal Profession Uniform Law Application Regulation and depend on the value of the estate. Additional fees are then charged in assisting executors administer the estate and will depend on the scope of work involved. We will provide you with an estimate before you engage with us as we don’t like any nasty surprises.
Section 54 of the Succession Act 2006 provides that the person who has possession or control of a will of a deceased person must allow the following people to inspect to be given copies of the will at their own expense:-
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person.
If you are an attorney appointed under a power of attorney and that person has not died, you are not entitled to a copy of the will, unless expressly authorised in writing by the will-maker.
Letters of Administration is a document issued by the Supreme Court that gives a person the authority to manage and distribute the estate of someone who has died without leaving a valid will (“intestate”) or where there’s a will but no executor is named or able to act. This person is called an administrator, often a close relative of the deceased. In New South Wales (NSW), the Supreme Court grants this document.
The main purpose of a Letter of Administration is to ensure there’s someone legally appointed to take care of the deceased’s assets, pay off any debts, and distribute the remaining estate according to the laws of intestacy in NSW. These laws dictate who inherits the estate in the absence of a will.
Chapter 4 of the Succession Act 2006 (NSW) sets out the order in which eligible people can inherit the estate of the deceased person if there is no will.
The following is the order in which certain relatives can inherit, noting that each group/category needs to be exhausted before moving onto the next eligible category/candidate:-
1. Spouse/s only – either married or de facto. There may be more than one spouse), but only if there are no children who are not also children of the spouse(s) entitled to apply.
2. Spouse(s) and children, if there are children of the deceased who are not the children of the spouse(s) who are entitled to apply.
3. Parents
4. Brothers and sisters (including the child/ren of any predeceased brother or sister. This includes half-siblings and siblings who are adopted by the parents of the sibling, but it does not include step-brothers or step-sisters).
5. Grandparents
In NSW the gross value of the estate is determined by summing up the deceased’s assets within NSW, minus any liabilities.
Assets can include (not limited to);
– Real Estate
– Bank Accounts
– Shares in companies
– Accommodation Bonds
– Cars, boats or other large assets
– Personal Effects such as jewelry or artwork
– Outstanding entitlements from work, insurance policies etc
– Deceased share in companies or businesses
– Some assets may need to be valued to ensure that the correct value is included in the gross value of the estate. Other liabilities on assets such as Capital Gains – Tax or Land Tax also require a valuation for certainty of value.
Liabilities can include (not limited to):
– Credit Cards
– Home Loans
– Personal Loans including finance, private agreements, or bank loans
– Organise the funeral & burial/cremation
– Locate the Will
– Arrange for care of any dependents, including pets
– Obtain the death Certificate/proof of death
– Contact the deceased’s employer
– Notify the beneficiaries of any Wills
– Make an appointment with us
– Make a list of all of the assets owned by the deceased
(e.g. bank accounts, shares, property, cars, jewellery
and anything else they owned)
-Make a list of all of the liabilities of the deceased
(e.g. mortgage, credit card debt, bills, and any other money owing
to any person or organisation)
Below are the top 10 with links on suggested wording for will drafters:-
1. The Smith Family
2. Médecins Sans Frontières Australia Limited
3. L.D.S. Charitable Trust Fund
4. Compassion Australia
5. LDS Charities Australia
6. Dangrove Trust
7. The Fred Hollows Foundation
8. The University of Sydney
9. The Cancer Council NSW
10. St Vincent’s Health Australia Ltd
Other charities our clients donate to include:
– Legacy
– RSPCA
– Guide Dogs Australia
– Ovarian Cancer Research
– Canteen
– National Breast Cancer Foundation
To search for a charity to donate to by program/interest search here to find an organisation that aligns with your goals and beliefs.
Although not required, it may be beneficial to inform your lawyer of the change in address. If you have left a particular residence away in your Will you no longer own, you will need to speak to your lawyer about updating your will.
Generally this will not be the case.
Refer to section 71(6) of the Duties Act which states that for the purpose of determining eligibility, the ownership at any time of residential property, or a previous application under the scheme, is to be disregarded if the residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his or her capacity as trustee or executor.