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Time limit
You should apply for Probate at the Supreme Court of NSW within six months from the date of death of the deceased. If it has been more than six months, you will need to provide an explanation for the delay in your affidavit.
What is Probate?
Probate is a court order made by the Supreme Court of NSW which confirms that the will of the deceased is valid and gives permission to the executor to distribute the estate as described in the deceased person's will.
If you are an executor named in a will you must apply for Probate if there is real estate owned in the deceased's sole name or as tenants in common with another person, or if any asset in the estate can’t be transferred without Probate.
The deceased's property can’t be distributed until Probate is granted by the Supreme Court of NSW.
Step by step guide - Applying for Probate
When there is more than one executor named in the will
If there is more than one executor named in the will, the application for Probate must be made by all the named executors jointly unless they have died or are unable or unwilling to act.
If an executor has died and the substitute executor is applying, a copy of the death certificate must be provided and included in the affidavit of executor.
When an executor is unwilling or unable to act
If you are an executor and don’t want to act, or the executor named in the will has died or doesn’t want to act, an application can be made to renounce Probate.
A will may name one or more people as executors (called 'instituted executors') as well as backup executors (called 'substitute executors').
If the instituted executor named in the will does not want to act they can file a Renunciation of Probate form with the Supreme Court of NSW.
Before renouncing the executor should check the wording of the will in order to make sure that another person is entitled to take their place.
The will may have:
- only one instituted executor named, with no substitutes
- multiple instituted executors, with no substitutes
- one or more instituted executors with substitutes.
If there are no other instituted or substitute executors, your lawyer, accountant or the NSW Trustee & Guardian may be appointed as the executor.
If the executor is one of multiple instituted executors then the remaining instituted executor(s) can usually apply for Probate.
If all the named executors renounce their right to apply for a grant, a beneficiary can apply for Letters of Administration with the will annexed.
For more information, see Applying for Letters of Administration.
If you are the executor and you don’t want to act, see Step by step guide - Applying for a Renunciation of Probate
A Renunciation of Probate can't be filed after probate has been granted.
The executor has died
If there are multiple executors named in the will and one of the executors dies, the other executor can apply for a grant of Probate. The executor will need to explain in the Summons and the Affidavit of Executor that the other executor has died and attach a certified copy of the death certificate.
If the sole executor has died, a beneficiary can apply for a grant of Letters of Administration with the will annexed.
For more information, see Applying for Letters of Administration.
The executor is a minor
If the sole executor is a minor (under 18 years of age), the Court may grant Letters of Administration with the will annexed to the guardian of the minor or to another responsible person appointed by the Court, until the minor reaches 18 years of age.
If one of the executors named in a will is a minor, the Court may grant Probate to the other executors with leave (permission) to the minor to apply for Probate upon turning 18 years of age.
If the sole executor or one of the executors is a minor, you should get advice from a private lawyer or NSW Trustee & Guardian about your options.
The executor has lost capacity
If the sole executor is mentally or physically incapable of managing his or her own affairs due to a disability, the Court may grant Letters of Administration with the will annexed to another person depending on whether the disability is permanent or temporary.
If there are other executors appointed by the will, the court may grant Probate to the other executors. The executors will need to explain in the Affidavit of Executor why one of the executors is unable to act and provide medical evidence.
If the executor is mentally or physically incapable, you should speak to a private lawyer or NSW Trustee & Guardian about your options.
The executor lives outside of NSW
If the executor lives outside of NSW they can appoint an attorney in NSW under a Power of Attorney or ask a lawyer in NSW to apply for a grant of Probate on their behalf.
If an executor lives outside of NSW, they must provide a separate letter asking for leave (permission) to use an address outside of NSW and explain their reasons. It is up to the Supreme Court to refuse or allow an address for service outside of NSW.
If the will does not name an executor
If the will does not name an executor or the executor is unwilling to act, then a beneficiary can apply for Letters of Administration with the will annexed. See Applying for Letters of Administration.
Beneficiaries
A beneficiary is the person who is entitled to receive a gift or share from the deceased estate.
A beneficiary has a legal right to inspect the will after the testator dies. Other people that can inspect a will include:
the spouse, child, parent or guardian of the deceased
a person that would have inherited under the estate if the person had died without a will (intestate)
a person who has or may have a claim against the estate
a person who has an Enduring Power of Attorney.
There are no legal requirements in Australia to have a formal reading of the will.
There are certain rules about what happens if a beneficiary dies before or shortly after the testator dies.
If the will was made before 1 March 2008, the beneficiary’s share in the estate will go directly to the estate unless the will says otherwise. If the will was made on or before 1 March 2008 and a beneficiary dies within 30 days after the testator, the gift to them will have no effect unless the will says otherwise. What the deceased beneficiary would have received will form part of the residue (remainder) of the testator’s estate and passes to other beneficiaries who inherit the remainder.
The wording of the will is very important. Some wills have clauses that allow the children of the beneficiary to inherit the share their parent would have been entitled to inherit if they had been alive.
If you are a beneficiary and you have a dispute with the executor, you should get legal advice from a private lawyer.
Grants from outside NSW
If the deceased owned property in NSW and you have obtained a grant of Probate or Letters of Administration outside of NSW, you will need to apply to the Supreme Court of NSW to reseal the grant before you can deal with the property in NSW. This means that the grant will be recognised in NSW.
Not all grants from other countries can be resealed by the Supreme Court of NSW. The Court will only reseal grants made in countries of the 'Commonwealth Realm'. This includes New Zealand, Papua New Guinea, Solomon Islands and countries within the United Kingdom; Scotland, England, Northern Ireland and Wales.
Before you file your application, you can check with the Supreme Court Probate Office if you are unsure whether the grant you have obtained from another Commonwealth country can be resealed in NSW.
The Supreme Court of NSW will only reseal a grant if the deceased owned property in NSW.
If you live outside of NSW, you may choose to appoint a power of attorney in NSW or a lawyer in NSW to make an application on your behalf.
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