Being appointed as an executor in a will is an act of trust on the part of the person making the will. It is also, in practice, one of the more demanding administrative and legal obligations most people will ever take on – often at a time of grief and personal loss that makes the demands more challenging. The probate process is the mechanism by which an executor’s authority to administer an estate is formally recognised by the NSW Supreme Court, and it is required for most estates of any significant value. At McDonnell Schroder, we assist executors in Western Sydney with the grant of probate and the administration of estates, and we find that most executors come to us with no prior understanding of what the role actually involves.
What Probate Is
Probate is a grant made by the Probate Division of the NSW Supreme Court that formally recognises the validity of a will and the authority of the executor named in that will to administer the estate. Once probate is granted, the executor has the legal authority to collect the deceased’s assets, pay debts and liabilities, and distribute the remaining assets to the beneficiaries according to the will. Without a grant of probate, financial institutions, real estate agents, and other third parties who hold assets of the deceased will not release them to the executor.
Probate does not create the executor’s authority – that authority is created by the will itself when the deceased signed it. What probate does is prove to the world that the will is valid and that the person applying for the grant is genuinely the executor named in that will. It provides protection to third parties who release assets to the executor in reliance on the grant.
When Probate Is Required
Not every estate requires a grant of probate. Some assets pass outside the estate entirely, including superannuation (which is distributed by the super trustee to nominated beneficiaries or dependants, not by the executor), jointly-owned assets that pass by survivorship to the surviving joint owner, and assets held in trust. For these assets, the executor has no role in their distribution.
For assets held in the deceased’s name alone – bank accounts, shares, real property in the deceased’s sole name, and other personal assets – the threshold at which financial institutions require a grant of probate varies but is typically reached quickly in any estate that includes real property or significant financial accounts. Banks and other institutions will generally release small account balances (typically under $50,000 to $100,000 depending on the institution) to executors on the basis of a death certificate and the will alone, but will require probate for larger amounts. Real property in NSW requires a grant of probate before the title can be transferred to beneficiaries.
The Probate Application Process
The probate application in NSW is filed in the NSW Supreme Court Probate Registry. The application requires a number of documents including the original will, the death certificate, an inventory of the estate assets and their estimated values, an affidavit by the executor, and a Notice of Intended Application that must be published in the Government Gazette and on the Supreme Court’s online probate notice system. The Notice of Intended Application must be published at least 14 days before the application is filed, which means the minimum timeline from beginning the probate process to filing the application is approximately two to three weeks.
After filing, the Probate Registry processes the application and, if all documents are in order, issues the grant of probate. The timing from filing to grant varies depending on Registry workload and the complexity of the estate, but is typically four to eight weeks. Where the application involves complexities – a will that is being contested, a question about testamentary capacity, or missing original documents – the process takes longer and may require additional procedural steps or a hearing.
What Executors Must Do After Probate is Granted
Once probate is granted, the executor’s role of active estate administration begins. This involves notifying relevant parties of the death and the executor’s appointment, collecting and protecting estate assets, paying the deceased’s outstanding debts and expenses (including funeral expenses, which are an estate expense and take priority), dealing with any tax obligations of the estate, and ultimately distributing the assets to beneficiaries as specified in the will.
Executors are personally liable for losses to the estate if they distribute assets before paying debts or if they make distributions that are otherwise improper. They are entitled to be reimbursed from the estate for reasonable costs incurred in administering it, and they may be entitled to commission for their work in complex estates, though commission requires court approval unless all beneficiaries agree to it.
When to Engage a Solicitor
Many executors attempt to manage the probate process without legal assistance, particularly where the estate is simple and the beneficiaries are in agreement. For straightforward estates with a valid will, a single property, and no disputes, this is achievable for an organised executor. For estates with any complexity – real property, superannuation questions, potential creditor claims, family provision applications by disappointed beneficiaries, or beneficiaries in disagreement – legal assistance from the outset avoids errors that are difficult and expensive to correct.
Contact McDonnell Schroder
McDonnell Schroder has administered estates in Western Sydney for over 60 years and provides efficient, expert probate and estate administration services for executors across the region. Whether you need assistance with the probate application alone or with the complete administration of the estate, we offer clear, practical advice and a free first consultation.
Call us on (02) 9622 1155 or visit our Blacktown office.
