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What to do with the estate

How to gather information about the estate to help you decide if you need to apply for a grant of Probate or Letters of Administration.

If you are an executor or next of kin, you have a responsibility to gather information about the assets and debts of the deceased. 

The process you will need to follow depends on whether or not the deceased had a will. 

When there is a will

If you are an executor in the deceased's will, you have certain duties to protect the estate. The most important duties of the executor include: 

  • taking control of the assets owned by the deceased
  • identifying debts owed to and by the estate
  • applying for a grant of probate at the Supreme Court of New South Wales;
  • paying the debts of the deceased, and 
  • distributing the estate to the beneficiaries according to the will after obtaining a grant of probate.

For more information, see Applying for probate.

If you are a beneficiary under a will, next of kin or relative of the deceased and the executor is unable or unwilling to apply for probate, you should get legal advice or contact the NSW Trustee & Guardian.

When there is no will

If you are a next of kin, relative or close friend of the deceased, you may apply to the Supreme Court of NSW for letters of administration to distribute the deceased's estate where: 

  • there is no will, or 
  • there is a will but there is no executor named in the will, or 
  • the executor in the will is unable or unwilling to act.

For more information, see Applying for letters of administration.

When you don't need to apply for Probate or Letters of Administration

Sometimes a grant of Probate or Letters of Administration may not be needed. For example, a grant is usually not needed where: 

  • the estate includes only real estate owned as 'joint tenants' and jointly owned personal property, or 

  • none of the asset-holders (for example, the bank where the deceased held an account) require a grant to transfer the asset to a beneficiary or to sell it

  •  there is money in the superannuation fund.

In circumstances where the value of the estate is small and only includes personal property, such as clothing, furniture and jewellery, a grant may not be needed.

If the deceased left money in their superannuation fund, you don’t need to apply for a grant of Probate or Letters of Administration. You should contact the superannuation fund. For more information, see Superannuation on What are assets and debts? 

If Probate or Administration is not needed, the next of kin can distribute the estate after dealing with the deceased's debts. For more information see, Distributing the estate.

When to apply for Probate or Letters of Administration

If the deceased person owned property in their own name, or as tenants in common with another person, or has substantial amount of money in their bank account, it is important to apply for a grant of Probate or Letters of Administration at the Supreme Court of NSW.

You should apply for a grant in the State where most of the property is held. You can apply for a reseal of a grant in another State where other assets are owned. 

If you are an executor named in the will, you can Apply for Probate.

If you don’t want to act as the executor, you can complete and file a Renunciation of Probate form with the Supreme Court.

Step by step guide: Renunciation of Probate

The next of kin can apply for Letters of Administration if:

  • there is no will, or
  • there is a will but no executor named in the will, or
  • the executor in the will is unable to unwilling to act.

Legal costs

The costs for applying for a grant of Probate or Letters of Administration are usually separated into: 

  • the costs of obtaining the Grant, and 

  • the costs of distributing the assets of the estate. 

A private lawyer 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  

  • verifying assets of the estate 

  • preparing court documents  

  • attending on the executor or administrator to sign documents 

  • lodging documents in court 

  • answering requisitions. 

Lawyers can charge separately for: 

  • 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 

  • acting for the sale of the property.  

NSW Trustee and Guardian can administer an estate for a fee. Their charges are based on the value of the estate. There are minimal charges for assets held in joint names.  
 
For more information, see Deceased estate administration fees on the NSW Trustee & Guardian website.