Wills and estates

I have been issued with the death certificate for the person who died. Who do I need to notify about the death?

It’s important to notify all organisations that the deceased person held an account with or received money from.

You can notify a number of banks, utilities, superannuation and NSW Trustee & Guardian online using the Australian Death Notification Service (ADNS).

To use this service, you will need to provide:

• the full name of the deceased person
• the date of birth of the deceased person
• the date of death of the deceased person
• the state or territory the person died
• the last known residential address of the deceased.
  

For more information, see Let organisations know someone has died on the ADNS website.

Not all services are part of the ADNS. It’s important to check which organisations the deceased person held an account with or received money from. 

For more information, see Wills and estates on the My problem is about section of our website.

Who h​as legal resp​onsibility​​​ to ​​​arrange the funeral?

If the deceased had a Will, the executor named in the Will is responsible for arranging the funeral. 

If the deceased did not have a Will, or if no executor was named in the Will, then the next of kin or close relative of the deceased can arrange the funeral.

If there is a dispute about who should arrange the funeral, you should get legal advice. ​

Who pays for my funeral?

This will depend on what arrangements you put in place.

Before you die, you may choose to pre-pay for your funeral or you may arrange a funeral plan, such as a funeral bond or funeral insurance.

If there is no funeral plan in place, the person who arranges your funeral is usually the person who is legally responsible to pay for the funeral. The person will usually be able to recover the costs of the funeral from your estate.

If you have no money or assets in your estate to pay for your funeral, the government may pay for a funeral. This is called a destitute funeral.

For more information, see Funerals on the My problem is about section of our website.

Can I make requests about what I want to happen at my funeral?

If you have specific requests for your funeral, you may be able to make funeral directions in your Will. The executor of your Will should try to carry out your wishes, as directed in the Will.

It may not always be possible to carry out your directions as you have intended, especially where there is not enough money in the estate, or the directions are unreasonable or difficult to carry out.

If you don't wish to be cremated, it is important that you give a written direction and let the executor or person most likely to arrange your funeral know.

The only direction that must be followed is that you are not to be cremated. All other directions are not legally binding.

For more information, see Funerals on the My problem is about section of our website.

What happens if there is a dispute over the funeral?

If the deceased had a Will, the executor has the right to arrange the funeral. 

If there is no Will, generally the next of kin has the right to arrange the funeral. This will be the deceased person’s spouse or de factor partner, adult children, adult parents or adult siblings. 

You can try mediation at a Community Justice Centre (CJC) to resolve your dispute. If you can’t resolve your dispute through mediation, the Supreme Court of NSW can hear disputes about funeral arrangements. This can be costly and complicated. Before you apply to the Supreme Court, you should get legal advice.

For more information, see Funerals on the My problem is about section of our website.

Can I stop a family member from attending the funeral?

You can’t stop a person from attending a funeral, unless the funeral is held privately on private property or there is an Apprehended Violence Order.

Who owns the ashes of the deceased?

If the deceased was cremated, the person who arranged the cremation is entitled to collect the ashes of the deceased from the crematorium or funeral director. 

If there is a dispute about the ashes of the deceased, you should get legal advice.

For more information, see Funerals on the My problem is about section of our website.

What is a​ Will?

A Will is a written document that sets out how you want your assets divided after your death. After your death, all of your assets, including your home, land, car, money in bank accounts, animals, shares, insurance policies, jewellery, pictures and furniture, and other personal belongings are known as your estate. 

There are certain legal requirements for making a valid​ Will. 

For more information, see:

• Chapter 3: Making a valid will in Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW on the State Library NSW website.
  
• Wills on the My problem is about section of our website.
  

Who can make a Will?

To make a valid Will you must:

• be over 18 years, although in some situations people under 18 can make a Will
  
• have testamentary capacity. This means that you must be able to understand what you are doing and how you want your estate distributed when you die. 
  

For more information, see Wills on the My problem is about section of our website.

Can a person​ under 18 make or change a Will?

A person under 18 can make or change a valid will if:

• they are married or about to be married, and the Will is made in contemplation of marriage
  
• an order from the Supreme Court of NSW allows them to.

The Court will consider the following things when deciding whether a minor can make or change a will:

• if they understand the nature and effect of the proposed Will or changes
• if the Will reflects the intentions of the minor
  
• whether it is reasonable in the circumstances to make an order.
  

If the Court makes an order, the will must be filed in the office of the Registrar.

If you are under 18 and want to make or change a will, you should get legal advice from a private lawyer. ​

Can a will be made or amended by a person who lacks mental capacity?

A Will is only valid if it is:

• written in a way that meets certain legal requirements
• made by a person who has testamentary capacity. This means the person can understand the nature and effect of the Will.

If a person lacks testamentary capacity their Will can only be made, revoked or changed by an order of the Supreme Court of NSW.

If you are involved in a dispute about whether a person had testamentary capacity when they made a Will, you will need legal advice from a private lawyer.

If you want to apply to the court on behalf of someone who lacks testamentary capacity, you should get legal advice from a private lawyer.

For more information, see Wills on the My problem is about section of our website.

Why should I make a will?

Making a Will allows you to have a say about what you want to do with your property and possessions after your death.

If you die without making a Will the Court will use a legal formula, called the intestacy rules, to decide who gets your assets.

This formula is based on family relationships. If you die without a spouse, children, parents, grandparents, aunts and uncles or first cousins, your estate will go to the government.

If you have family and don’t have a Will, the process can be more complicated. For example, if a person dies without making a Will and they have a de facto partner, their partner may have to provide evidence of the relationship before they can claim anything from the estate. This can cause extra expense, time and stress.

For more information, see Wills on the My problem is about section of our website.

How do I make​​ a will?

A Will is an important legal document and it must meet certain legal requirements for it to be valid. You must be over the age of 18 and have mental capacity. The will must be in writing, signed by the testator (the person making the will) and signed by two witnesses.

For more information, see Chapter 3: Making a valid will in Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW on the State Library NSW website.

Although you can make a Will yourself, it is a good idea to get legal advice. A lawyer can help you understand the effect of your Will and can make sure your Will meets legal requirements.

You can get your will prepared by a private lawyer or NSW Trustee & Guardian.

For more information, see Wills on the My problem is about section of our website.

Should I get a lawyer ​to draft my Will?

Although you can write your Will yourself, or use a Will kit, a lawyer can ensure your Will is valid, and meets all legal requirements. A lawyer can also make sure your Will distributes your assets according to your wishes. A lawyer can:

• make sure your Will is correctly written, signed and witnessed
  
• make certain that your wishes are clearly expressed in the Will
  
• advise on how you can provide for your family members or close friends
  
• advise on any potential liability for capital gains tax which might result from provisions in your Will
  
• advise on choosing an executor and on the executor's right to be paid for administering your estate
  
• advise on the most effective and efficient way to arrange your affairs
  
• store the Will in a safe place.
  

You can also get your Will prepared by the NSW Trustee & Guardian for a fee. The NSW Trustee & Guardian will not charge a fee if you are eligible for a full Centrelink Age Pension. However, they will charge a commission for dealing with the estate after death.

For more information, see Wills on the My problem is about section of our website.

Where​​ can I get my will prepared for free?

A lawyer will charge you for preparing a Will.

The NSW Trustee & Guardian also charge a fee unless you are eligible for a full Centrelink Age Pension. The NSW Trustee & Guardian will charge a commission for administering your estate after death.

For more information, see Will Fees on the NSW Trustee & Guardian website and Wills on the My problem is about section of our website.

Is a will kit ​​​valid?

Any Will is valid as long as it complies with the legal requirements. Will kits should only be used for very simple Wills. 

For more information, see Chapter 3: Making a valid will in Rest Assured: a legal guide to wills, estates, planning ahead and funerals in NSW on the State Library NSW website.

Can a Will still ​​​be valid if it does not meet the legal requirements?

The Supreme Court of NSW can decide whether a Will is valid even if it does not meet the formal legal requirements. These types of proceedings can be costly and time consuming.

If you are involved in a dispute about the validity of a Will, you should get legal advice from a private lawyer.

Who can witness a Will?

For a Will to be valid it must be signed in the presence of two or more witnesses. The witnesses must be over 18 and see the testator, the person making the Will, sign the Will.

A beneficiary under the Will should not be a witness. If a beneficiary witnesses a Will, any inheritance to them may be considered invalid. This means that they may not get the share of the estate left to them. There are complex rules about this, so it is best not to use any beneficiaries as a witness.

For more information, see Wills on the My problem is about section of our website.

How can I find another​ person's Will?

If you are looking for a person's Will after they have died, you can:

• check their personal property and papers. They may have left a note stating where the original Will is, or the original itself might be with other important financial papers.
  
• speak to their lawyer. If the deceased had a lawyer prepare their Will, the lawyer usually keeps the original. 
• speak to their bank or trustee company.
• do a search to see if the NSW Trustee and Guardian have the will. For more information, see Find out if we hold a Will made in NSW on the NSW Trustee and Guardian website. 

Can I register my​​ Will?

There is generally no legal requirement to register your Will. You should make sure that your lawyer or executor knows where your Will is kept.

You can arrange for the NSW Trustee & Guardian to safely store your Will in their Will Safe. For more information, see Will and document storage on the NSW Trustee & Guardian website. 

There are some Wills that must be deposited with the Supreme Court of NSW, including Wills made by minors or Wills made by people lacking testamentary capacity.​​

Where should I keep my Will?

After you make your Will, you should keep it in a safe place.

This may be:

• ​with your lawyer
  
• at your bank
  
• with the NSW Trustee & Guardian.
  

It is a good idea to keep a copy at home among your personal papers and a note explaining where the original is kept. 

​It is also a good idea to tell your appointed executors where the original Will is kept.​

You can arrange for the NSW Trustee & Guardian to safely store your Will in their Will Safe. For more information, see Will and document storage on the NSW Trustee & Guardian website. 

For more information, see Wills on the My problem is about section of our website.

What if I want to ​​change my Will?

If you want to change your Will, you can:

• prepare a new Will, or
• make a Codicil.

A Codicil is a written document that is added to an earlier Will. It must meet all the formal requirements of a Will. The Codicil should not include any statement that cancels previous Wills. In most cases, it is easier to just make an entirely new Will.  

If you are considering making a Codicil, you should get legal advice from a private lawyer.

Getting married or divorced​ can also affect your Will. A Will is revoked if a person marries or gets divorced, unless there are specific provisions.

For more information, see Wills on the My problem is about section of our website.

Is a Will still valid after ​​​marriage?

Any Will made before the testator is married is revoked (cancelled) on marriage unless:

• it was made in contemplation of the marriage
  
• the person they are marrying, or have married, is named as a beneficiary, executor or trustee of the estate.

If you made a Will before getting married, you should get legal advice from a private lawyer if you want to update your Will.  

For more information, see Wills on the My problem is about section of our website.

Is a Will still valid after a ​divorce or annulment?

Unless the Will states otherwise, divorce or annulment will revoke (cancel) any provisions of a Will in existence at the time of the divorce or annulment that:

• make a gift to the former spouse
  
• appoint the spouse as executor, trustee or guardian.

A Will can be made in contemplation of a divorce but there are complex requirements and you should get legal advice from a private lawyer.

If you are separated, but not yet divorced, the Will is still valid until it is revoked.

If you are divorced or separated, you should get legal advice from a private lawyer and consider making a new Will.

Can I appoint more than one executor?

You can appoint more than one executor. If you appoint more than one executor you need to decide whether you want them to be able to act jointly, or jointly and severally. 

If you appoint them jointly, they must both agree to any decision.

If you appoint them jointly AND severally, then the executors will be able to make decisions together or individually. 

You also have the option to nominate a substitute executor in case the first executor dies, resigns or loses mental capacity. 

If you are not sure what to do in your circumstance, you should get legal advice. 

For more information, see Wills on the My problem is about section of our website.

Can I appoint a lawyer to be my executor?

The person you appoint as an executor should be someone who you trust and who will act responsibly.

If you don't have a family member or a friend willing to be an executor, you may consider appointing a third party as executor. This might be your lawyer, your accountant or NSW Trustee & Guardian. You should speak to your proposed executor before appointing them.

If you appoint your lawyer, the lawyer has strict rules they need to follow to act as an executor, and there is certain cost related information they will advise you of. The lawyer will be able to recover their costs from your estate.

Can I choose who will care for my children when I die?

Your Will can nominate who you would like to care for your children after your death, but the nomination is not legally binding or enforceable.

Your wishes may be considered if there is a dispute, but ultimately the Court would consider what is in the best interests of your children at that time.

If you are concerned about who will care for your children if you die, you should get legal advice.

Can I make provision in my Will for my adult child who has an intellectual disability?

It is possible to make provision in your Will for an adult child with an intellectual disability where they do not have the mental capacity to manage their affairs. This may include setting up a trust fund like a Special Disability Trust. 

You will need to get legal advice to help you determine the best way to do this. ​You can speak to a private lawyer or NSW Trustee & Guardian about your options.​

What is a Special Disability Trust?

A Special Disability Trust is a new type of trust fund that allows you to make long term financial provision for your child without the risk that they will lose their entitlement to Centrelink benefits. 

There are very strict requirements that must be met for the trust to be eligible so you should get legal advice. You can also talk to NSW Truste​e & Guardian​​.

How long d​​oes​​ a Will last for?

A Will operates until it is revoked (cancelled). It will be revoked when:

• you create a new Will
• you get married, unless you made the Will in contemplation of your marriage.  

If you get divorced, any gifts to your ex-partner, or appointment of them as executor, trustee or guardian, will be revoked. Other provisions that do not relate to your ex-partner will still operate.

If you are separated but not divorced, the Will is still valid until you update your Will. 

What happens if I kept my Will with a lawyer, but they are no longer in practice or they have died?

If your lawyer is retiring or closing their practice they should try and contact you so that they can return your original Will.

If you have not had any contact from your lawyer, or your lawyer has died, you can:

• contact the firm where the lawyer worked, if they are still operating, or
  
• contact the Law Society of NSW for information about whether the firm has been taken over, or whether they have information about where the files are being held.

What happens ​​if a beneficiary dies shortly after the testator does?

This depends on when the Will was made. If the Will was made:

• before 1 March 2008, unless the Will says otherwise, the beneficiary's share of the estate will go directly to their estate
  
• on or after 1 March 2008 and a beneficiary dies within 30 days after the testator, unless the Will says otherwise, the gift to them will have no effect. It will be treated as if they died immediately before the testator. What the deceased beneficiary would have received forms part of the residue (remainder) of the testator's estate and passes to the other beneficiary(s) who inherit the remainder. 
  

If you want to exclude the 30 day provision from applying to your Will or if you are concerned about how it affects you, you should get legal advice.

What happens​ if a beneficiary in my Will dies before me?

Generally, if your beneficiary dies before you, the gift to them in your Will lapses (fails). This means that their estate will not inherit anything from your estate. What the deceased beneficiary would have received forms part of the residue (remainder) of your estate and passes to the beneficiary(s) who inherit the remainder.

Wills can contain clauses that allow the children of a beneficiary to inherit the share that their parent would have inherited, if they had still been alive.

If one of your beneficiaries has died, you should get legal advice to make sure that your Will still accurately expresses your intentions.

What happens ​if my child is a beneficiary in my Will and dies before me?

If your child dies before you do, unless your Will says otherwise, the gift to your child after you die will pass directly to their children. This means that your grandchildren will inherit the share that their parent would have inherited if they had still been alive. However, unless your Will says otherwise, your grandchildren must survive at least 30 days after your death. 

If there are no grandchildren the gift to your child may form part of the residue (remainder) of the estate, but this can depend on the wording of your Will.

You should ensure your Will states what you want to happen to a gift to your child if they die before you. If you are unsure, you should get legal advice.

Do I have to change my Will if one of the beneficiaries changes their name?

It may not be necessary to change your Will where a beneficiary has changed their name. The beneficiary may be able to show that they are the same person named in the Will. For example, they may be able to provide their change of name certificate or marriage certificate which shows both their maiden name and their married name.​

Can I inspect a​​ deceased person's Will?

If the Will was made by a person who died on or after 1 March 2008, you have a legal right to inspect the Will or a copy of it if you are:

• a beneficiary or another person named in the Will
  
• a beneficiary or another person named in an earlier (revoked) Will
  
• a spouse (married or de facto) or child of the deceased
  
• a parent or guardian of the deceased
  
• a person that would have inherited under the estate if the person had died without a Will (intes​tate)
  
• a person who has or may have a claim against the estate, including a creditor
  
• an Attorney of the deceased in an Enduring Power of Attorney.
  

If you meet at least one of these categories, you can speak to the executor or person holding the Will, including a lawyer, about inspecting it. You will have to pay any expenses, for example, the cost of photocopying the Will.

Once Probate is completed the Will becomes a public document which means anyone can access it. You can  apply for a copy of the grant from the Probate Registry of the Supreme Court of NSW for a fee.  For more information, see Getting copies and access on the Supreme Court of NSW website. 

Does an executor have to conduct a reading of the Will?

There is no legal requirement in Australia to have a reading of the Will. 

What if I am un​happy with the executor?

If you are not happy with the way the executor is performing their duties, you should first try to resolve the problem by talking to the executor. If they have a lawyer helping them with the estate, you could also try to discuss your concerns with the lawyer.

The executor has a legal duty to deal with the estate in an honest and competent manner. They can be held personally responsible for any loss suffered by a beneficiary if they fail to act in such a manner. Similarly, lawyers have an obligation to act in an honest and competent way. If they don't, you may be able to make a complaint about the lawyer to the Office of the Legal Services Commissioner.

In some situations, you may be able to apply to the Supreme Court of NSW for an order to have an executor removed if they have not carried out their duties appropriately. You would need to provide evidence of how the executor has breached their duties or be able to show how they have been negligent or fraudulent.

If you have concerns about an executor, you should get legal advice. It is best to do this before you take any court action.

What is the Probate Service?

The Probate Service is a guided online service that allows users to apply for a grant of Probate, Letters of Administration, Letters of Administration with the will annexed or Reseal.

From 1 August 2023, the Supreme Court will no longer accept paper applications. 

How do I apply for a grant of Probate, Letters of Administration or Reseal using the Probate Service?

You will need to register an account with the NSW Online Registry. You can set up your account through the Probate Service on the NSW Courts and Tribunals Online Registry website.

After you have set up your account, you can apply for a grant by following the steps and answering the questions. The Probate Service will automatically generate the forms for you to download, print and sign.

The Probate Service will also prompt you to send the original will and any codicils either by post or in person.

It is important to check your emails regularly as you will receive a notification by email about the status of your application.

What can I do if I can’t file online?

From 1 August 2023, the Supreme Court will no longer accept paper applications for a grant of Probate, Letters of Administration, Letters of Administration with the will annexed or Reseals.

If you need help, you should contact the Probate registry directly.

Who can provide me technical support using the Probate Service?

You should read the following on the Probate Service page:

• Frequently asked questions page
• Glossary
• Help and support page.

You can also contact the Probate registry directly if you have other technical issues about the Probate Service.

What if there is an issue with my application after I submit it?

If there are any problems with your application, you will receive a notification by email. You will then need to log in to the Probate Service to action the request.

What if the estate involves ​property in NSW and interstate?

If you are the executor or administrator and formal administration (Probate or Letters of Administration) is required, you can apply for a Grant of Probate or Letters of Administration in the State where the majority of the property is held. The Grant of Probate or Letters of Administration will need to be re-sealed (filed) in the second State where other assets owned by the deceased are held. You should speak to a lawyer in that State for legal advice.

What assets do I need to include in an inventory of property?

You must include all assets owned by the deceased in NSW. You can include assets the deceased owned interstate or overseas but only if you list them under a separate heading from the NSW assets. The assets owned in NSW must be clearly identifiable.   

Only the assets the deceased owned in NSW will be included in the gross value of the estate. The value of any interstate or overseas assets will not. 

How do I apply for a Grant of Probate?

A Grant of Probate is usually needed if:

• the estate includes real estate where the property is not held as joint tenants
• a third party, for example a bank, needs a court order to release money to the executor so that they can carry out the terms of the will
• the estate is complex and/or has lots of assets.

Some small estates or estates where the only asset is a property held as joint tenants may not require a Grant of Probate. If the deceased only had a small amount of money in their bank account, speak to the bank about whether they require a Grant.

Before you can apply for a Grant of Probate, you need to publish your Notice of intended application for probate. 

You will then need to file documents with the Court and pay a filing fee, which varies depending on the size of the estate.

For more information, see Applying for Probate on the My problem is about section of our website. 

I am an executor/administrator for an estate and live outside of NSW. Can I still apply for Probate or Letters of Administration?

Your address for service should be in NSW. 

If you live outside of NSW, you must provide a separate letter asking for leave (permission) to use an address outside of NSW and explain your reasons. It is up to the Supreme Court to refuse or allow an address for service outside of NSW.

An administrator who lives outside of Australia can’t apply for a grant unless a Power of Attorney is made. If you are a beneficiary and want to apply for administration from outside of Australia, you should appoint an Attorney within NSW to apply on your behalf. The Power of Attorney must give clear authority to the Attorney to make an application in the Supreme Court for NSW for Letters of Administration or Letters of Administration with Will Annexed.  The Attorney becomes the applicant, and affidavits are completed by the Attorney.

If there is more than one executor, do we each need to sign the Affidavit of Executor form?

If there is more than one executor named in the will, each executor will need to sign the affidavit and have it witnessed.

For more information, see Step by step guide - Applying for Probate on the My problem is about section of our website.

Is there a time limit to apply for Probate or Letters of Administration?

You should apply for a grant of Probate or Letters of Administration within six months from the date of death. 

If you apply after six months, you will need to provide an explanation for the delay.

If you are applying for a grant of Probate, you will need to explain the reasons for the delay in your Affidavit of the Executor or in a separate Affidavit (Form 40).

If you are applying for Letters of Administration, you will need to explain the reasons for the delay in your Affidavit of Application for Administration or in a separate Affidavit (Form 40).

For more information, see:

• My problem is about: Applying for Probate
• My problem is about: Applying for Letters of Administration
  

Do I ha​ve​​ to​​ give Notice of applying for Probate or Letters of Administration?

When you apply for Probate or Letters of Administration through the Probate Service, the Notice of your intention to apply will be published on the NSW Online Registry. Thi​s Notice tells potential creditors that you will be making an application to the Supreme Court of NSW for Probate or Letters of Administration.

You have to pay a fee by credit card.

For more information about payment methods, see Fees on the Supreme Court of NSW website.

Is Probate​ or Letters of Administration needed if the decease​d's estate is small?

Usually, Probate or Letters of Administration will not be required if:

• all the assets of the deceased are held in joint names with another person for example, a house owned as joint tenants
  
• the institution holding the deceased's funds for example, bank accounts or shares, does not require formal administration to release the funds.

If you are the executor or administrator and you are not sure whether Probate or Letters of Administration is needed, you can speak to the institutions that hold the deceased's assets to see what documentation they require. You can also get legal advice about your situation.

For more information, see Chapter 7: Procedure on death if there is no will in Rest assured: a legal guide to wills, estates, planning ahead and funerals on the State Library NSW website.

What if the person died​ without a Will?

If the person died without a Will, they are referred to as having died 'intestate'. 

An eligible relative can apply to the Supreme Court of NSW for a Grant of Letters of Administration. Normally this is the person who is the closest relative to the deceased, for example, the spouse. There are rules for how the estate is divided in this situation. These are called the rules of intestacy. 

For more information, see Applying for Letters of Administration on the My problem is about section of our website.

What costs will I have to pay when I apply for Probate or Letters of Administration?

There are various types of costs involved when applying for Probate or Letters of Administration, including:

• the lawyer's fees for doing the work up until Probate or Letters of Administration is granted
  
• disbursements, for example, the cost of putting a public Notice in a newspaper that Probate or Administration is being applied for or the fee paid to obtain a copy of the Death Certificate
  
• a filing fee, which will vary depending on the size of the estate
  
• legal costs for work done after the Grant.
  

An executor or administrator can apply to the Supreme Court of NSW for an amount out of the estate to cover the work they have done in dealing with the estate.

There are complex rules about this and you will need legal advice if you want to make a claim.

What if I don't have a credit card or access to the internet? 

If you do not have a credit card or debit card and secure access to the internet, or you are unable to create an Online Registry account, you can can contact or visit the Supreme Court of NSW in person for assistance. 

For more information about payment methods, see Fees on the Supreme Court of NSW website.

How much will a lawyer ​​charge for Probate or Letters of Administration?

The costs are usually separated into:

• the costs of obtaining the Grant, and
• the costs of distributing the assets of the estate.

When private lawyers apply for Probate or Letters of Administration, they can only charge fixed costs for the work related to obtaining the Grant, and these costs are set out in the Legal Profession Uniform Law Application Regulation 2015 (NSW). Lawyers often refer to these costs as scale costs.

The scale costs cover work which strictly relates to obtaining the Grant of Probate or Letters of Administration, including:

• taking instructions from the executor or administrator to obtain the Grant
• verifying assets of the estate
• preparing court documents for the Grant
• attending on the executor or administrator to sign the court documents
• lodging documents in court
• answering requisitions raised by the court.

However, there is often work carried out by lawyers before obtaining the Grant which falls outside of the scale costs, and lawyers are entitled to charge separately for that work. This includes:

• enquiries to find out about assets
• sorting through estate papers
• searches to find out who the beneficiaries are
• advising on taxation, and
• obtaining valuations and appraisals of property.

Lawyers may also charge additional costs for work done after obtaining the Grant which is outside of the scale costs. For example, if the estate includes a property which must be sold, then private lawyers will usually charge an additional fee for conveyancing, which will vary according to the nature and value of the property.​

How much will the NSW Trustee & Guardian charge for Probate or Letters of Administration?

The NSW Trustee & Guardian falls under a different legislative scheme to private lawyers. The rates charged by the NSW Trustee & Guardian cover obtaining a Grant of Probate and the costs of administering the estate to finalisation, including conveyancing on sale of an estate property.

For more information, see NSW Trustee and Guardian fees on the NSW Trustee & Guardian website.

How can I get a copy of the​ Probate ready reckoner?

The Probate ready reckoner is a scale used by lawyers to determine what fees they can charge for obtaining a Grant of Probate or Letters of Administration. Although the scale is in legislation, it is not straightforward to use and does not take into account GST or the nature of work done, as some work is not covered by the scale. 

If you want to access the Probate ready reckoner, you should ask your lawyer to show it to you or give you a copy of it.

Am I allowed to go to the deceased person’s home and clear it out?

The executor or the administrator has the responsibility to collect all the assets, pay estate debts and hold the estate in trust for the beneficiaries. This means that you can’t remove anything from the property.

The executor or administrator has the duty to distribute the estate following a grant of Probate or Letters of Administration. If the deceased person had a will, it is important to check the will to see if the deceased gave any specific gifts or if there is a residuary clause that deals with everything that is left over after specific gifts and legacies have been distributed. 

For more information, see Distributing the estate on the My problem is about section of our website.

When can the executor or administrator distribute the estate?

The executor or administrator generally has 12 months from the date of death to finalise the estate. This is known as the "executor's year". Sometimes the executor or administrator may need longer time depending on:

• the complexity of the estate
  
• if they need to locate any missing beneficiaries
  
• how long it takes to realise (sell) assets
  
• if anyone contests the Will. 
  

The estate should not be distributed until at least six months after the date of death. This allows time for any claims against the estate.

In some cases, the executor or administrator can make an interim distribution to a beneficiary. However, there are risks with making early distributions if there is a claim against the estate. 

If the legacy has not been paid within 12 months from the date of death, a beneficiary can claim 2% interest on the unpaid amount after this period. The interest is calculated at 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to add. For more information about the current interest rate, see the Reserve Bank of Australia website.

If the executor or administrator has not paid the legacy within 12 months, you should get legal advice.

For more information, see Distributing the estate on the My problem is about section of our website.

Does the executor or administrator need to publish a Notice of Intended Distribution?

No, it is not mandatory to publish a Notice of Intended Distribution after a grant of Probate or Letters of Administration. A Notice of Intended Distribution gives 30 days for creditors to make a claim on the estate. In some circumstances the notice may provide the executor or administrator with some protection from personal liability, if there are future claims from creditors.

For more information, see Notice of intended distribution of an estate on the Supreme Court website. 

How do I access a person's email account or social media account after they die? 

If you are an executor or administrator and want to access or close an online account belonging to the deceased, you should notify the service provider about the death and ask them about their requirements.  

Even if you have the username and password, you should not gain access to the account without obtaining written permission from the service provider.

Most service providers require proof of identity and a death certificate for requests made by a personal representative, family member or friend of the deceased. 

Some social media providers such as Facebook will allow a personal representative, family member or friend to freeze an account and mark the profile as "in memoriam" or "legacy" so there is a record of the social media activity of the deceased.  

If the service provider refuses to provide access or close the online account, you should get legal advice. 

How can I transfer property owned by the deceased?

If the deceased owned property with another person as joint tenants, the surviving joint tenant is entitled to have the property transferred into their name. 

If the deceased owned property in their own name or as tenants in common, the property will be distributed to the beneficiaries as noted in the grant of Probate or Letters of Administration.

To transfer ownership of a property, you will need to see a lawyer or a conveyancer to prepare and lodge a transfer with NSW Land Registry Services (NSW LRS). NSW LRS does not accept paper lodgments. A lawyer or conveyancer can do this through an Electronic Lodgment Network (ELN).

You will need to pay a fee to NSW LRS and the legal costs for the lawyer or conveyancer. You should ask how much they will charge you before you ask the lawyer or conveyancer to prepare the transfer.

For more information, see Transferring real property in Distributing the estate on the My problem is about section of our website.

What should I do if I have been left out of the Will or I am not happy with my share?

If you have been left out of a Will you may be able to make a claim for a share of the estate if you are an eligible person and you have not been adequately provided for. These types of claims are called family provision claims and can be made even if there is no Will.

You will need to show that you are an eligible person. An eligible person may include:

• the spouse or partner of the deceased
• a child of the deceased, or
• any person the deceased was living in a close personal relationship with at the time of their death.
  

Before making a family provision claim, you should try mediation at a Community Justice Centre (CJC) to try to discuss the situation. You may be able to resolve your dispute without going to court.

If you are unable to resolve your dispute through mediation, you can make an application for a family provision claim.

Applications for a family provision claim are made in the Supreme Court of NSW and must be made within 12 months from the date of death.

For more information, see Family Provision Claims on the My problem is about section of our website.

Before making a claim, you should get legal advice from a private lawyer.

How do I challenge the di​stri​​bution o​​​f ​an estate?

If you want to challenge the distribution of an estate, you must be able to show that you have not been adequately provided for and be an eligible person. These types of claims are called family provision claims and can be made even if there is no Will.

You will need to show that you are an eligible person. An eligible person may include:

• the spouse or partner of the deceased
• a child of the deceased, or
• any person the deceased was living in a close personal relationship with at the time of their death.
  

Before making a family provision claim, you should try mediation at a Community Justice Centre (CJC) to try to settle the dispute without going to court. 

If you are unable to resolve your dispute through mediation, you can make an application for a family provision claim.

Applications for a family provision claim are made in the Supreme Court of NSW and must be made within 12 months from the date of death.

For more information, see Family Provision Claims on the My problem is about section of our website.

Before making a claim, you should get legal advice from a private lawyer.