• You need to be named as an executor of the will to apply for a grant of probate. 
• If you are not named as an executor you may be able to apply for a grant of letters of administration. 
• Letters of administration will provide you with the same power to administer the estate as a grant of probate.

• You are not required to apply for probate in every case. 
• It may be that asset holders such as banks, superannuation funds or insurance companies require a grant of probate prior to releasing funds. 
• This is to ensure that they release funds to the correct person. As such they may require proof of probate. You should ask whether certified copies of the death certificate, the will and your identification will be sufficient.
• Some assets such as a water entitlement licence or real estate held alone or as a co-tenant can only be transferred to a beneficiary by an executor under a grant of probate or letters of administration.

• If you lodge a caveat against probate being granted you can put a hold on it. 
• A caveat will remain in force for 6 months from the date it is lodged. 
• If it is found that you have no proper reason to lodge a caveat the court can strike it out. 
• If your caveat is struck out you may be ordered to pay the legal costs of the estate.

• The professional costs and the filing fee are payable from the estate's assets following the grant of probate being obtained and prior to any distribution to beneficiaries. 
• This means that if you are an executor you will be reimbursed for any solicitor’s fees or filing fees that you have paid out of your own pocket.

• If the estate is not complex and all assets and liabilities are known to the executor then the application may be filed in the probate registry of the Supreme Court of NSW upon expiration of the 14 day period of notice.
• Once the application has been filed it will be processed by the court. The court will evaluate the application and if it has no further queries the grant of probate is sealed with the mark of the Supreme Court of NSW and returned to the applicant.
• The time it takes for the court to process an application will depend on how many applications there are before the court at that time but a ball-park indication of the standard time-frame is between 1 and 3 months.

• It is possible to ‘renounce’ (refuse) your role as the executor of a will by signing a formal renunciation and filing it in the Supreme Court of NSW. 
• This should be completed as soon as possible and before you take any action in relation to the estate. We can assist with this.
• Once you have taken any action (intermeddled) in the affairs of the estate you are usually no longer permitted to renounce your position as executor.
• An exception is if you find that you are unable to adequately fulfil your duties and you appoint the NSW Trustee & Guardian or a trustee company in your place.
• If probate has been granted and the estate has largely been dealt with but there are ongoing trusts such as bequests to beneficiaries who have not yet attained the age at which their inheritance will vest in them or the executor is acting as trustee of the remainder of a life estate then the executor may retire as trustee and appoint a new trustee in their place. 

Question

What will it cost in court fees to apply for probate or letters of administration?

Answer 

• The first court fee is for filing an online notice that the executor intends to apply for probate. That fee changes over time and is approximately $45.
• When applying for probate the estate must pay a court filing fee. The amount depends on the estimated value of the estate. The fees are:

Court Fee Value of Estate

• $1 Under $100,000.
• $772 $100,001 to $250,000.
• $1,048 $250,001 to $500,000.
• $1,607 $500,001 to $1,000,000.
• $2,141 $1,000,001 to $2,000,000.
• $3,568 $2,000,001 to $5,000,000.
• $5,948 More than $5,000,000.

• These fees are regularly reviewed.

Question

My father is really unwell and we want to get his affairs in order. The person he named as executor was his brother but his brother passed away last year. What do we do?

Answer

• If no executor or substitute executor can be identified through the will then the court will appoint an administrator for you. 
• Usually this will be the beneficiary with the largest share of the estate according to the will. 
• The fact that your father's brother has passed away should not be a barrier to you seeking probate of the estate. 
• If your father is still mentally competent he may wish to speak with us and redraw his will nominating a new executor. This will also allow him to check that all the bequests he has made are still current and capable of being fulfilled.

Question

We have been in contact with the executor listed in my mother's will but she refuses to fulfil her duties. In particular she refuses to make a probate application. She says she will do it but she just never gets around to it. It's now been almost a year. What happens in this situation? 

Answer

• The law makes it a requirement that the executor administer the estate within the period of 12 months from the date of death.
• In the event that the executor fails to discharge their duty and administer the estate within the 12 month period then a beneficiary may apply to the court for letters of administration with a copy of the will annexed.

Question

My mother died quite suddenly and unexpectedly. She didn't have a will. I'm her eldest child but I have three younger siblings. I really don't know how I am meant to deal with her estate. What normally happens when there is no will?

Answer 

• If there is no will then there is no executor of the estate. 
• You can still obtain the power to deal with her estate by seeking letters of administration. 
• Letters of administration grant an appropriate person the powers of an executor to deal with a deceased person's estate. 
• If you apply for letters of administration you will be named the administrator of your mother's estate and will be responsible for paying the estate debts and distributing the assets. 

Question

I was named as executor of my uncle’s will. It is a really simple estate. His only assets were an old car of no value, his house which he owned as joint tenants with my aunt and a lot of old clothes and books which he said in his will should be donated to charity. He lived off a pension and had no savings. Do I really need to apply for probate? 

Answer 

• You would have needed to apply for probate if:
• your uncle owned real estate in their own name or as tenants in common; or
• he left financial assets such as shares, life insurance or substantial bank accounts and the relevant bank or other institution requires probate in order to release the funds to you.
• However, as your uncle was a joint tenant this means that his share of his house passes to his wife (your aunt) without the need for a grant of probate.
• Given his only other property was personal possessions it is likely that you will not need to apply for probate.
• Your aunt will automatically inherit the house under the survivorship rules of joint tenancy and you will not need a grant of probate to transfer it to her. You will need:
• the original death certificate; 
• the original certificate of title for the house; and 
• to make a transmission application to the Land Registry Service of NSW (LRS).
• As your uncle’s bank account had no savings in it you should be able to take a copy of the will, the death certificate and your identification to the bank and ask them to close the account. They will provide you with forms to transfer any remaining balance to the beneficiary named in the will.
• You should also be able to transfer the car ownership and registration to the appropriate beneficiary by taking the death certificate, a copy of the will and the registration papers to your local motor vehicles registry.
• You should keep clear records of everything you do in relation to administering the estate.
• We are able to assist you with these processes if you are not confident in doing it yourself.