Executor Handbook NSW | Understanding Probate in NSW
Probate is the court's way of confirming the will is valid and giving you, as executor, legal authority to deal with the estate. In NSW, it comes from the Supreme Court. It's not optional for most estates, and it takes time. Understanding the timeline and process removes a lot of the uncertainty.
Do You Always Need Probate?
Not always. Small estates under about $50,000 with no property can often be dealt with through each bank or super fund's own small-estates process. If there's a house in the deceased's name, though, you almost certainly need probate. Probate is also required if there are significant assets, investment properties, business interests, or anything that requires a formal legal transfer.
Talk to a solicitor early if you're unsure. A 10-minute consultation costs less than getting it wrong. Start with the first two weeks to make sure you've covered the basics.
The NSW Probate Timeline
Every estate is different, but a typical NSW probate follows roughly this sequence:
Weeks 1 to 2. Register the death. Find the will. Protect the house and the assets.
Weeks 3 to 6. Bring in a solicitor if you're using one. Gather asset details. Draft the application.
Months 2 to 3. Notice of Intention is published via the NSW Online Registry (14-day window). Application is then filed with the Supreme Court.
Months 3 to 5. Grant of Probate is issued. Four to eight weeks after filing is normal.
Months 4 onwards: Administering the estate. Closing accounts, selling the house, distributing what's left.
Month 12: The executor's year. Most estates are expected to wrap up inside twelve months. Complex ones run over.
This is a rough guide. Probate can move faster or slower depending on complexity, how organised the documents are, and whether beneficiaries agree on everything.
Do You Need a Solicitor?
Technically, no. You can apply yourself as a litigant in person. That said, if your loved one entrusted a solicitor with their will, it's best to work with them.
In practice, if the estate has a house, super, investments, or really anything beyond a bank account, a solicitor earns their fee several times over. Fees for a straightforward Sydney probate sit between about $2,500 and $5,000. The estate pays, not you personally. Need help finding a solicitor? See our NSW contacts guide.
A good probate solicitor will:
- Prepare the application and gather all required documentation
- File with the Supreme Court and manage timelines
- Obtain the Grant of Probate
- Handle communications with beneficiaries and institutions
- Advise on tax and distribution timing
- Act as your legal backup if something goes wrong
It's worth the investment for peace of mind alone.
Your Duties as Executor
Being an executor is a fiduciary duty. In practice, that means the law trusts you to act in the estate's best interests ahead of your own, because beneficiaries are relying on what you do next.
The plain-English version:
- Keep estate money completely separate from your own. Open a dedicated estate account on day one.
- Keep records of everything. Receipts, photos, correspondence. These protect you if anyone questions your decisions later.
- Pay the debts before you distribute anything. You can be personally liable for debts paid out of money already distributed to beneficiaries.
- Don't let sentiment, yours or anyone else's, override your duty to the estate.
These aren't suggestions. They're legal obligations.
Estate Accounts
During probate, bills still arrive. Legal fees. Filing costs. Property maintenance. Professional disbursements. These come due during probate, not after it.
Open a dedicated estate account immediately. Keep all receipts. A solicitor will help you account for these expenses when you distribute the estate. A clear record protects you and makes distribution easier.
Financial Assistance: JustFund
If the administration costs are crushing the estate before assets can be realised, JustFund is an option.
JustFund is an Australian lender (ACL 568341) that advances funds secured against estate assets, with repayment deferred until the estate distributes.
The Executor Loan funds the costs of administration. This includes pre-grant legal and filing fees, counsel fees, disbursements to valuers and financial advisors, funeral costs, property maintenance, insurances, repairs, and creditor demands from the ATO, utilities, and council.
The Beneficiary Loan allows a beneficiary to access funds against their entitlement before the estate's finalised, repaid from their distribution when it comes through.
Applications can be submitted online by you, your lawyer, or a beneficiary. JustFund assesses the estate's solvency and returns a decision within 3 to 5 business days. Once approved, funds are paid within 24 hours. Nothing is repaid until the estate distributes.
JustFund works with over 1,000 law firms across Australia and is a legitimate option if cash flow is tight during probate.
Apply or enquire: justfund.com.au · 1300 644 980
What Happens After Probate Is Granted
Once the Grant of Probate is issued, you have legal authority to:
- Access and transfer bank accounts
- Sell or transfer property
- Close super accounts and claim death benefits
- Settle insurance claims
- Manage the estate's assets
You can now proceed with selling or distributing property to beneficiaries. Settlement on a property sale can happen. You can distribute assets according to the will.
FAQ
How long does probate actually take?
Eight to twelve weeks is normal in NSW. If the estate is complex, straightforward, or if there are disputes, it can take longer. Most solicitors can give you a more accurate estimate once they've reviewed the will and asset list.
What if a beneficiary disagrees with the will?
Probate proceeds regardless. A beneficiary can challenge the will after probate is granted, but they can't stop the probate process itself. Talk to your solicitor if you're aware of potential disputes before filing.
Can I distribute anything before probate?
Not safely. Some small items (personal items named in the will) might be okay, but don't distribute estate assets or money before the Grant. You're personally liable if something goes wrong.
What if the deceased died with debts?
Debts are paid from the estate before beneficiaries are paid. Funeral costs, legal fees, rates, utilities, personal loans, mortgages, all come out before anyone gets their distribution. If debts exceed assets, beneficiaries get nothing.
Do I need to pay tax on the estate?
The estate pays tax, not the beneficiaries. But the estate's final tax return must be lodged with the ATO before distributions. Use an accountant who specialises in estate tax. It's worth the cost.
What if I'm the sole executor and I'm overwhelmed?
Talk to your solicitor. You can appoint a co-executor or an administrator. You can also step down and let the NSW Trustee and Guardian take over, though that's rare. Don't let overwhelm paralyse you. Get help early.
Next: The House and Property Responsibilities
Property is usually the biggest asset and source of stress. Understanding your responsibilities early prevents costly mistakes.
Read about the house and your responsibilities
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