Serving as the Executor of a deceased estate is a significant responsibility. In Sydney, this role typically culminates in applying for a Grant of Probate from the Supreme Court of NSW—a legal step essential for finalising the deceased’s affairs, particularly when Property buy sell transactions or significant assets are involved. The process can seem daunting, but when broken down into clear, manageable steps, it becomes much less intimidating. This guide provides a straightforward, compliance-focused roadmap for Executors in NSW, ensuring you meet your Law obligations and efficiently administer the deceased estate.
Step 1: Initial Executor Duties and Document Collection
Your duties commence immediately upon the passing of the deceased. Before you even think about the Supreme Court, thorough preparation is required.
Locating the Original Will and Death Certificate
The first and most critical duty is locating the original Will. Only the original document is accepted by the court for a Grant of Probate. If the deceased held the Will with a solicitor or the NSW Trustee & Guardian, contact them immediately. Simultaneously, you must obtain the original Death Certificate from the Registry of Births, Deaths and Marriages. These two documents are the cornerstone of your application.
Identifying and Protecting Estate Assets
As Executor, you have a fiduciary duty to protect the assets of the estate from waste until distribution. This is especially vital for Property Owners in Sydney.
- Real Estate: Secure any Property Management issues, arrange immediate insurance coverage (as the deceased’s policy may be voided by the death), and notify the mortgagee if a loan exists.
- Financial Assets: Notify all banks, superannuation funds (note that super generally passes outside the estate unless paid to the estate), share registries, and insurance companies of the death.
- Inventory: Compile a comprehensive, accurate Inventory of Assets and Liabilities as at the date of death. This list is mandatory for the probate application and determines the court filing fee.
Step 2: Publishing the Notice of Intended Application for Grant of Probate
Before you can formally apply to the Supreme Court of NSW, Law requires you to give public notice of your intention. This step is designed to protect you, the Executor, from future creditor claims.
The NSW Online Registry Requirement
The Notice of Intended Application for Grant of Probate must be published on the Supreme Court of NSW Online Registry website. This public announcement serves two main purposes: it informs potential creditors of the estate, allowing them time to come forward with any claims, and it allows other interested parties to object (lodge a caveat) if they dispute the validity of the Will or your role as Executor.
The Mandatory 14-Day Waiting Period
You must wait at least 14 days after the date the notice is published before you can file the formal application documents with the court. This mandatory waiting period is strictly enforced by the Supreme Court of NSW Probate Registry and failure to comply will result in a requisition (delay).
Step 3: Preparing and Lodging the Probate Application Documents
This is the most technical phase, where attention to detail is paramount to avoid requisitions that delay the process. Many Probate Lawyers Sydney are engaged at this stage to ensure accuracy.
Key Forms for the Supreme Court of NSW
You will need to prepare and sign several official documents, typically requiring witnessing by a qualified person such as a solicitor or Justice of the Peace (JP):
- Probate Summons (UCPR Form 111): The formal request to the court.
- Affidavit of Executor (UCPR Form 118): This legal document confirms your identity, the date of death, verifies the original Will, and attaches the original death certificate.
- Inventory of Property (UCPR Form 117): The final, sworn list of all estate assets and liabilities as collected in Step 1.
- Court Filing Fee: The fee is calculated based on the gross value of the assets listed in the inventory, with higher value estates incurring a higher fee.
Lodging the Application
The application is now predominantly filed online via the Supreme Court of NSW Probate Service. You must upload the signed forms and then mail the original Will (which must be marked in the margin by you and your witness) and the original Death Certificate to the Probate Registry. Submitting a clear, error-free application is the fastest way to obtain the Grant of Probate.
Step 4: Court Review, Grant, and the Administration Process
Once lodged, the application enters the court’s processing queue. The timeline for a Grant of Probate is variable but generally takes 4 to 8 weeks for straightforward cases.
Responding to Court Requisitions
If the court finds an error, a missing document, or an ambiguity, they will issue a requisition—a formal request for clarification or correction. Responding quickly and accurately to requisitions is essential, as this is the most common cause of long delays. Engaging Probate Lawyers Sydney greatly minimises the chance of receiving a requisition in the first place.
The Grant of Probate is Issued
The Grant of Probate is a legal order from the Supreme Court of NSW confirming the Will is valid and formally granting you the legal authority to administer the deceased estate. Until this document is issued, you cannot formally deal with major assets like selling a Property buy sell asset or finalising bank accounts.
The Executor’s Year and Distribution
After the grant, you must formally collect all assets, pay all outstanding debts, liabilities, and taxes (including final tax returns). It is a statutory requirement to generally wait six months from the date of death before distributing the assets to the beneficiaries. This waiting period allows time for any potential Family Provision Claims (contesting the Will) to be lodged. The entire estate administration process typically takes between 6 to 12 months (known as ‘the Executor’s Year’).
Step 5: Finalising Property and Distributing the Deceased Estate
The final steps involve transferring ownership and releasing funds according to the Will.
Dealing with NSW Real Estate
For Property Owners, the Grant of Probate is presented to the NSW Land Registry Services to transfer or sell property that was owned solely by the deceased or as tenants-in-common. This process involves filling out a Notice of Death or a Transfer form, depending on whether the property is being sold or transferred to a beneficiary. This is a critical legal step where professional assistance from a solicitor specialising in Law and conveyancing is almost always required.
Final Distribution and Release
Once all debts, taxes, and legal costs have been paid, the remaining deceased estate is distributed according to the terms of the Will. As Executor, you should prepare a statement of estate accounts for the major beneficiaries before making the final distribution. Keeping clear records throughout this entire process is paramount for fulfilling your Executor duties and avoiding personal liability.
Conclusion
The Probate process in Sydney demands meticulous attention to detail and strict adherence to the Law. While complex, following this step-by-step guide ensures you meet your legal obligations as Executor and efficiently administer the deceased estate. Whether you are dealing with a complex Property buy sell portfolio or a simple estate, seeking timely advice from Probate Lawyers Sydney can streamline the application, minimise delays, and provide essential peace of mind during a difficult period.
Questions and Answers
A Grant of Probate is generally necessary in Sydney if the deceased owned real estate in their sole name or as tenants-in-common, or if the financial institutions (like banks) require court authority before releasing funds due to the large value of the deceased estate assets. Assets held as joint tenants or small amounts of cash often do not require it.
The Executor must wait at least 14 days after publishing the Notice of Intended Application for Grant of Probate on the NSW Online Registry before formally lodging the application documents with the Supreme Court of NSW.
While the court review for the Grant of Probate takes around 4 to 8 weeks for a straightforward application, the total estate administration process (including paying debts, collecting assets, and observing the statutory period for potential claims) typically takes between 6 to 12 months (known as ‘the Executor’s Year’) before final distribution can occur.
No. An Executor cannot legally proceed with a Property buy sell transaction to transfer or sell real estate that was solely owned by the deceased until the Grant of Probate has been formally issued by the Supreme Court of NSW, as this document confirms their legal authority over the asset.