Probate & Letters of Administration in NSW
When someone passes away, banks, share registries, or land titles offices usually require a court grant before releasing assets or allowing property transfers. In New South Wales (NSW), this grant is either Probate (when there’s a valid will and an executor) or Letters of Administration (when there’s no valid will, or the executor cannot act).
This guide explains the differences, when each is needed, the steps, timeframes, typical costs, and how early legal advice can save time and stress.
What is Probate?
Probate is a court order proving the deceased’s last will is valid and confirming the executor’s authority to collect assets, pay debts, and distribute to beneficiaries. Probate is generally applied for when a valid will exists and the named executor is able and willing to act.
In NSW, applications are made to the Supreme Court of New South Wales. Usually, you must publish an online notice of intended application at least 14 days before lodging the formal court papers.
Applications should typically be filed within 6 months of the date of death. If later, an affidavit explaining the delay is required.
What are Letters of Administration?
Letters of Administration are similar to Probate but are used when there is no valid will (intestate) or when the executor cannot or will not act. The court appoints an administrator, usually the spouse or next of kin, to manage the estate according to NSW intestacy laws.
Notice requirement: An online notice of intended application must be published at least 14 days before filing.
Probate vs Letters of Administration: Key Differences
| Topic | Probate (valid will) | Letters of Administration (no valid will / no executor) |
|---|---|---|
| Who applies | Executor named in the will | Next of kin (spouse, child) in order of priority |
| What the grant proves | Validity of the will and authority of the executor | Authority of the administrator (distribution follows intestacy rules) |
| When it’s used | Will is valid and executor can act | No will, will invalid, or executor unable/unwilling to act |
| Pre-filing notice | Online notice of intended application; wait ≥14 days | Same |
| Typical deadline | File within 6 months of death (explain delays if later) | Same |
| Distribution rules | According to the will | According to intestacy law |
| Common extras | Codicils, executor renunciation (if applicable) | Evidence of next-of-kin entitlement and consents from relatives |
Step-by-Step: Applying to the NSW Supreme Court
1) Prepare and publish the online notice
Create an NSW Online Registry account and publish a Notice of Intended Application. If you correct an error, the 14-day waiting period restarts.
2) Gather required documents
Typical Probate documents include: Summons, Grant, Inventory of Property, Affidavit of Executor, original will and codicils, and Death Certificate. For Administration, include evidence of next-of-kin status and any renunciations/consents. (Forms and rules are set by the Uniform Civil Procedure Rules 2005 (Part 78).)
3) File the application (after 14 days)
File via the Online Registry with supporting affidavits, inventory, and court fee. The court reviews the will (if any) and applicant authority.
4) Grant issued and next steps
If approved, the Court issues a sealed Grant of Probate or Letters of Administration. The personal representative collects assets, pays debts, and may publish a Notice of Intended Distribution before distributing to beneficiaries.
Timeframes
- Notice period: Minimum 14 days between publishing the notice and filing application.
- Filing window: File within 6 months of death; explain any delay in an affidavit.
- After the grant: Wait at least 30 days after a Notice of Intended Distribution and at least 6 months from death before final distribution.
Documents, Notices, and What to Prepare
- Death Certificate (final version)
- Original will and codicils (if seeking Probate)
- Executor or next-of-kin details
- Inventory of NSW assets and liabilities (property listing)
- Published online notice details and dates
- Affidavits addressing identity, capacity, and any delay beyond 6 months
Document requirements and lodgment rules are set out in the UCPR and Supreme Court guidance.
Common Issues That Cause Delays
- Incorrect or incomplete notice (names, dates, estate details).
- Missing consents/renunciations with multiple executors or next-of-kin.
- Questions about will validity (e.g., unstapled attachments, handwritten changes).
- Capacity or undue influence concerns (may need medical or witness evidence).
- Overseas applicants (extra identity/affidavit requirements).
Executor vs Administrator: Roles Are Similar
Both are legal personal representatives. Duties include acting lawfully, prudently, and in the best interests of the estate: identify and secure assets, pay debts and tax, keep records, and distribute according to will or intestacy. Publishing correct notices and observing waiting periods is part of acting prudently.
Practical Timeline (for Simple, Uncontested Estates)
- Weeks 1–4: Gather documents, open Online Registry account, publish notice.
- Week 6: File application after 14-day notice period.
- Weeks 8–12+: Court processes file and issues grant (time varies).
- After grant: Collect assets, pay liabilities, consider Notice of Intended Distribution, then distribute.
When to Seek Legal Advice
Seek advice if unsure which grant applies, multiple next-of-kin exist, the will is unusual, or the estate includes real property, large balances, or significant shares. A lawyer ensures notices and affidavits comply with UCPR Part 78 and current fees.
For tailored assistance, contact [email protected] or call 0401 513 190. We can draft notices, prepare affidavits, and manage filings efficiently.
Frequently Asked Questions (FAQs)
Do I need a lawyer? Not strictly, but engaging a solicitor helps avoid errors and delays.
What if the original will is lost? The Court may accept a copy with extra evidence; legal advice is recommended.
Can I speed things up? You must wait 14 days after the notice; accurate papers prevent delays.
What if it’s been more than 6 months since death? You can apply, but include an affidavit explaining the delay.
Do I have to publish a Notice of Intended Distribution? Not mandatory, but recommended for risk management.
