What Is Probate in NSW and When Do You Need It

What probate actually means
If you have been named as an executor, one of the first questions you will hit is what is probate in NSW and whether you even need it. A grant of probate is the Supreme Court of NSW’s confirmation that the will is valid and that the executor named in it has authority to act. Until that grant is made, banks, share registries and the Land Registry will often refuse to release or transfer the deceased person’s assets, because they have no proof the will is the last valid one.
Probate does not change who inherits. The will already decides that. What the grant does is give the executor the legal standing to collect the assets, pay the debts and distribute the estate the way the will sets out. You can think of it as the paperwork that turns a private document into one the rest of the world will act on.
When you need probate in NSW
Whether you need probate depends on what the deceased owned and how it was held. As a general rule, you will need a grant when the estate includes:
Real estate held only in the deceased person’s name.Bank accounts, term deposits or shareholdings above the amount each institution will release without a grant.Assets held with an organisation that asks to see probate before it will pay out.
Each bank and share registry sets its own limit for releasing funds without a grant, so two estates of a similar size can have different answers. If you are unsure, our estate administration services can review what the deceased held and tell you early whether a grant is likely to be required, which saves starting the process late.
When probate is not needed
Not every estate needs probate. The most common exception is property held as joint tenants, such as a home in the joint names of a couple. That share passes automatically to the surviving owner by survivorship, so it does not form part of the estate that needs a grant. Assets held jointly, and small balances an institution is willing to release on a death certificate and a statutory declaration, can often be dealt with without going to court.
Superannuation frequently sits outside the will as well, because it is usually paid at the trustee’s discretion or under a binding nomination. Working out early which assets need a grant and which do not is one of the clearest ways to keep an estate moving, and it is worth a conversation before you lodge anything.
Probate or letters of administration
Probate applies when there is a valid will with a named executor. Where there is no valid will, or the named executor cannot act, the process is different. A family member usually applies for what the courts call letters of administration, which is court permission to manage an estate when there is no valid will. The practical steps are similar, but the person applying is an administrator rather than an executor, and the estate is shared out under a set legal formula rather than under a will.
This is one reason an up-to-date will matters so much. You can read more about keeping your affairs in order in our guide to estate planning basics, which covers why a current will makes the whole process simpler for the people you leave behind.
How the executor applies
In New South Wales, an application for probate is made to the Supreme Court. Before filing, the executor publishes an online notice of intended application on the Court’s website and waits the required short period before lodging. The application itself includes the original will, the death certificate and an inventory of the estate’s assets and liabilities.
Most straightforward applications are handled on the papers without anyone needing to attend court. Where the will is unusual, damaged, or the estate is complex, the Court may ask for more information, which is where local advice earns its keep. Our estate planning team handles probate and estate administration for families across the Macarthur and Wollondilly region, and can prepare and lodge the application for you so nothing is missed.
FAQ
Is probate always required in NSW?No. It depends on what the deceased owned. Property held solely in their name, or larger accounts and shareholdings, usually need a grant, while jointly held assets and small balances often do not.
How much does probate cost?There is a court filing fee set by the NSW Supreme Court, which is scaled to the value of the estate, plus the legal work to prepare and lodge the application. We give a clear quote up front once we know what the estate holds.
What is the difference between probate and a will?A will is the document that says who inherits and who the executor is. Probate is the court’s confirmation that the will is valid so the executor can act on it.
If you have been named an executor and are not sure where to start, talk to a local estate lawyer before you lodge anything. Call 02 4626 5552 or book a consultation at our Picton or Oran Park office.
This article is general information about the law in New South Wales and is not legal advice. For advice on your own situation, please speak with a lawyer.