Losing a loved one is difficult enough without the added stress of handling their estate. If you’ve been named as an executor in someone’s will, you may be wondering: Do I need probate? How do I apply? What happens if I get this wrong?

Key Takeaways:

Probate is required when the deceased owned property solely in their name, or had bank accounts/investments exceeding approximately $50,000 to $100,000
Executors should apply for probate within 6 months of death in NSW
The court typically takes 1 to 2 months to grant probate once the application is lodged
Small estates, jointly owned assets and assets held in trust may not require probate
Court filing fees range from $0 (estates under $100,000) to over $7,000 (estates over $5 million)
Professional legal advice protects executors from personal liability and costly mistakes

This guide provides practical advice to help you understand when probate is required, when it’s not, and the steps you’ll need to take to handle an estate properly in New South Wales.

Whether you’re dealing with a straightforward estate or complex assets, this guide will give you clarity on the probate process and help you protect everyone’s interests.

What is Probate?

A grant of probate is a legal document issued by the Supreme Court of NSW. It gives an executor the official authority to manage and distribute a deceased person’s estate.

Think of it as your legal permission slip. Without probate, banks, government agencies and other institutions may refuse to release assets or transfer ownership, even if you’re named as executor in the will.

Probate confirms three essential things:

The will is valid and represents the deceased’s final wishes
You have the legal authority to act as executor
You can manage the estate’s assets, pay debts and distribute inheritances

When Do You Need to Apply for Probate?

Not every estate requires probate. The need depends on the type and value of assets involved. Here’s when probate is typically required:

1. Property or Land Owned in the Deceased’s Sole Name

If the deceased owned real estate (whether a house, apartment or investment property) in their name alone, you’ll always need probate to transfer or sell that property.

2. Bank Accounts or Investments in the Deceased’s Name Alone

Financial institutions have different thresholds, but most require probate when accounts or investments exceed a certain value (often around $50,000 to $100,000). Even smaller amounts may require probate if the institution requests it.

3. Complex Estates or Multiple Beneficiaries

Estates involving multiple beneficiaries, disputed assets or significant debts often require probate to ensure proper legal oversight and fair distribution.

4. Shares in Public/private companies

Share registry will require probate for transfer of shares

5. Insurance proceeds

Insurance companies will require probate where proceeds are to be transferred to the estate

6. Charitable requests

Probate will be required to deal with registered charities to distribute gifts and obtain receipts for funds transferred

7. Litigation

Probate is required where the estate is/ or likely to be involved in court proceedings (such as e.g. application for provision by a beneficiary or potential beneficiary who has been left out of the will).

8. Superannuation

Probate is required where proceeds are to be distributed to the estate.

When You May Not Need Probate

In some situations, probate isn’t necessary:

1. Small Estates

If the estate consists only of personal belongings, small savings accounts or minimal assets with no property, probate may not be required. Many banks will release funds without probate if the amounts are below their threshold and proper identification is provided.

2. Jointly Owned Assets

Assets held in joint names, such as a property owned with a spouse or a bank account with a co-signatory, typically transfer directly to the surviving owner without needing probate.

3. Assets Held in Trust

If assets are held within a trust structure, they may pass directly to beneficiaries without going through the probate process. Trust assets are not part of the estate.

The Probate Timeline: When Should You Apply?

In NSW, probate should be lodged within six months from the date of death. While this is the recommended timeframe, it’s not an absolute deadline. However, delays can complicate estate administration and may raise questions from beneficiaries.

The actual time to receive the grant of probate varies. Once all required documents are prepared and submitted to the Supreme Court, it generally takes 1 to 2 months to receive the grant.

However, the preparation phase (gathering asset information, obtaining valuations and completing legal documents) can take several weeks or months depending on the estate’s complexity.

Step-by-Step Guide to Applying for Probate

Applying for probate involves several legal steps. Here’s what you’ll need to do:

Step 1: Locate the Original Will

The court requires the original will, not a copy. This document identifies who has been appointed as executor and outlines how the estate should be distributed.

If you can’t find the original will, contact the deceased’s solicitor. Wills are often stored in their office. You can also check with the NSW Trustee & Guardian, which maintains a national will register.

Step 2: Compile a Complete List of Assets and Liabilities

You’ll need to provide the court with a detailed inventory of everything the deceased owned and owed. This includes:

Assets:

Property and land
Bank accounts and savings
Superannuation and life insurance
Shares and investments
Vehicles and personal belongings
Business interests
Nursing home bond
Loans owed to the deceased

Liabilities:

Mortgages and loans
Credit card debts
Outstanding bills and taxes

This list forms the basis of your probate application and helps determine the estate’s total value.

Step 3: Complete the Executor’s Affidavit

As executor, you must complete an affidavit (a sworn legal statement) providing detailed information about the deceased, the will and the estate’s assets and liabilities.

This document requires precision. Any errors or omissions can delay the probate process or lead to your application being rejected.

Step 4: File the Probate Application with the Court

Once your affidavit is complete and all supporting documents are gathered, you’ll file your probate application electronically with the Supreme Court of NSW. The application includes:

The original will
The death certificate
Your executor’s affidavit
The asset and liability schedule
Any other documents required by the court

Step 5: Receive the Grant of Probate

After the court reviews your application, you’ll receive the grant of probate. This is the legal document that gives you authority to administer the estate.

Once you have this grant, you can:

Access bank accounts
Sell or transfer property
Collect debts owed to the estate
Pay outstanding liabilities
Distribute assets to beneficiaries

Common Challenges When Applying for Probate

Even straightforward estates can present unexpected complications. Here are some common issues executors face:

1. Missing or Incomplete Information

If asset details are unclear or documents are missing, gathering the required information can be time-consuming. Banks, investment firms and government agencies each have different requirements for releasing information.

2. Disputed Wills

Family members may challenge the will’s validity or claim they were unfairly treated. These disputes can delay probate significantly and may require legal intervention to resolve.

3. Complex Asset Structures

Estates involving business interests, overseas assets or complicated investment portfolios require specialist advice to value and distribute properly.

4. Executor Responsibilities and Liability

Executors have significant legal obligations. If you make mistakes, such as distributing assets before paying debts or failing to account for all beneficiaries, you could be held personally liable.

How Legal Professionals Can Help

Managing probate alone can be overwhelming, especially during an already difficult time. Professional legal support ensures the process is handled correctly and protects you from potential liability. Our wills and estates team specialises in guiding executors through every stage of application for probate and estate administration.

1. Accurate Document Preparation

Probate applications require precise legal documentation. A solicitor ensures all forms are completed correctly, reducing the risk of delays or rejections.

2. Complete Asset Investigation

Legal professionals can help you identify and value all estate assets, including those that might not be immediately obvious, such as overseas investments or shared business interests.

3. Dispute Resolution

If family members challenge the will or disagree about asset distribution, a solicitor can mediate disputes or represent your interests in court if necessary.

4. Ongoing Estate Administration Support

Probate is just the beginning. Once you receive the grant, you still need to pay debts, lodge tax returns and distribute assets. Legal professionals provide guidance throughout the entire administration process.

5. Protection from Personal Liability

Executors can be held personally responsible for mistakes made during estate administration. Professional advice helps you fulfil your obligations correctly and protects you from potential claims.

Practical Tips for Executors

If you’ve been named as executor, keep these tips in mind:

Start Early

Don’t wait until the six-month deadline. Begin gathering information as soon as possible.

Keep Detailed Records

Document every decision, expense and communication. This protects you if questions arise later.

Communicate with Beneficiaries

Keep beneficiaries informed about the process and any delays. Clear communication prevents misunderstandings.

Get Professional Advice

Even if the estate seems simple, a brief consultation with a solicitor can prevent costly mistakes.

Don’t Distribute Assets Too Soon

Pay all debts and taxes before distributing inheritances. Distributing assets prematurely can leave you personally liable for unpaid debts. The succession Act provides a level of protection to executor where assets are not distributed for 6 months after date of death.

Be Aware of Deadlines

Probate should be lodged within six months, but estate administration involves many other time-sensitive obligations, including tax returns and creditor notifications.

Handling Probate with Confidence

Dealing with probate doesn’t need to be overwhelming. Understanding when probate is required, what the application involves and where to get help makes the process more manageable.

Whether the estate is straightforward or complex, taking the right steps early and seeking professional advice when needed ensures you fulfil your duties as executor properly while protecting yourself from potential liability.

At & Legal, we provide clear, practical guidance for executors navigating the probate process. With over 50 years’ experience in estate administration, our team ensures your probate application is handled professionally and efficiently.

Need Help with Probate?

If you’re an executor facing probate, we’re here to guide you through every step. Contact & Legal today to discuss your situation and find out how we can help make the process smoother.

Frequently Asked Questions

How much does it cost to apply for probate in NSW? an off-the-plan purchase?

Court filing fees vary depending on the estate’s value. For estates under $100,000, there is no court filing fee. For estates valued between $100,000 and $250,000, the fee is approximately $921. For larger estates (over $5 million), the fee can exceed $7,000. Additional costs include the notice publication fee of $57 and solicitor fees for preparing the application, which depend on the estate’s complexity.

What happens if I don’t apply for probate?at are the main risks of buying off the plan?

If probate is required but not obtained, you won’t be able to access or distribute the estate’s assets. Banks, property registries and other institutions will refuse to release funds or transfer ownership without a grant of probate.

Can I apply for probate myself, or do I need a lawyer?

You can apply for probate without a lawyer, but it’s not recommended, especially for complex estates. Mistakes in your application can result in delays, rejections or personal liability. Legal advice ensures the process is handled correctly.

What if there are debts that exceed the estate’s assets?

If the estate is insolvent (debts exceed assets), you should seek legal advice immediately. There are specific rules about which debts must be paid first, and executors can be held liable if they distribute assets incorrectly.

How long does probate take from start to finish?

The preparation phase can take several weeks to months, depending on how quickly you can gather information. Once lodged with the court, receiving the grant typically takes 1 to 2 months. However, administering the entire estate (including paying debts and distributing assets) often takes 6 to 12 months or longer.

What if someone contests the will?

Will contests can significantly delay probate. If a family member challenges the will’s validity or claims they were unfairly excluded, the matter may need to be resolved through mediation or court proceedings before probate is granted.

Do all bank accounts need probate?

Not always. Banks have different thresholds. Some will release small amounts without probate if you provide the will, identification and the death certificate. However, most accounts over $50,000 to $100,000 will require probate.

What if the deceased didn’t leave a will?

If there’s no will, you’ll need to apply for letters of administration instead of probate. This process is similar but follows intestacy rules, which determine how assets are distributed according to NSW law.

When Is Probate Required in NSW? What Every Executor Needs to Know