Do I need to obtain Probate in NSW?

There are legal and practical considerations which will determine whether you as the executor need to obtain Probate.

Practical Considerations.

Many asset holders (such as the Department of Lands, Aged Care Facility or Share Registry) will not release or transfer the assets of the estate until a Grant of Probate is obtained and in these circumstances the executor will have no choice but to obtain Probate.

If the deceased owned only joint assets, then Probate is not required to transfer those assets, for at law, those assets pass to the surviving joint tenant at the moment of death.

In circumstances where the estate comprises of only of a few assets of small value, it is common for the asset holder to dispense with the requirement of Probate provided that the executor agrees to indemnify the asset holder for any claim made by, creditors, beneficiaries or any other executor. An executor may choose to do so to avoid the need to apply for the Grant of Probate in NSW.

Legal Considerations.

By obtaining Probate, and following the procedure set out in the Probate and Administration Act (NSW), the executor gains two very important advantageous:

Authority to deal with assets: Section 44 of the Probate and Administration Act (NSW) provides that upon the Grant of Probate of the Will, all property of the deceased (both real estate and personal property) within NSW, shall as from the date of death be vested in the executor named in Probate. It follows that unless Probate is obtained, the executor is not legally authorised to deal with those assets and runs the risk of being held personally liable for intermeddling with the estate assets if a later Will is discovered.

Protection from claims: Following the Grant of Probate being obtained, Probate Sydney (and if instructed to do so) will publish a notice in the newspaper that the executor intends to distribute the assets of the estate and pay only those creditors who have given notice. Provided the executor has waited at least 30 days to distribute the estate from the date of publication of notice, and at least 6 months has elapsed since the date of death, then the executor may then pay the creditors and distribute the estate to the beneficiaries.

If a creditor or beneficiary (including a person seeking to challenge the Will) later makes a claim on the estate, the executor can refer to the Grant of Probate and publication of notice in which case the executor will be fully protected from the claim (and the creditor or beneficiary must then seek to pursue the other creditors / beneficiaries). In these circumstances the executor will be protected from any claims.

Unless the Grant of Probate is obtained and requisite notice published the executor may be held personally liable for any dealings or distributions made in relation to the estate, and even if these dealings were made honestly and with good intentions. 

To get started with the application simply complete your details by clicking here, or contact us on 1300 4 PROBATE (1300 477 622).

You may also be interested in reading:

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Testimonials

  Completely satisfied. Would definitely recommend Probate Sydney to others. We were given professional helpful and relevant service and always kept informed of present situation.  
Doris from Sydney
  Probate Sydney was incredibly efficient and professional. I particularly appreciated that my solicitor was prepared to give advice. The service provided by Probate Sydney was great value for money and made what was a stressful time much easier for me.  
Marylyn from Victoria
  After my mother passed away I was confused and depressed, had no idea how to sort probate and had very little money. Thankfully Probate Sydney made everything so much easier. Very helpful and friendly service at an affordable price. I highly recommend Probate Sydney.  
Kevin from Beverly Hills
  Probate Sydney was sympathetic and aware about my grieving and difficult time I was experiencing. They went above their duty to help me overcome the odds and finish my probate and I am happy to recommend Probate Sydney to a friend or family member.  
Rose from Chiswick
  We still recommend Probate Sydney to this day. Probate Sydney were dealing with Dad's estate and we found them extremely helpful and provided prompt answers in a format that we could understand. We have, and did recommend Probate Sydney to other family members, neighbours and friends well before they had finished dealing with our needs. Thank you s...  
Robyn from the North Coast
  I was very pleased the way things were done. Probate Sydney were very helpful.  
Lorraine from Merrylands.
  When my father died my brother and I were dreading working through the Will, Probate and necessary paperwork. Probate Sydney ensured the process was smooth and efficient, and best of all the fees were reasonable.  
Philippa from Orford
  I was very happy with the way Probate Sydney attended to my needs. The fee structure was clear from the beginning and adhered to. The solicitor was prompt in his replies to my emails and very courteous. There were no problems with my probate and I have been completely satisfied.  
Gilda from Gordon
  Probate Sydney dealt with our matter expertly. Everything went smoothly and according to plan.  
Kevin from Caringbah
  The service I received from Probate Sydney was excellent. All queries answered promptly. Advice given was covered and in plain English. Progress updates were provided on a regular basis and the fees reasonable. I would recommend Probate Sydney to my friends and family members.  
George from Malvern
  At such an emotional time, we as a family, were very pleased with the way we did not have to worry about yet another item to worry about after our father passed away.  
Ulana from Canberra
  We are in the country and found the process very easy with no problems. Very happy with the service provided by Probate Sydney, Country people shouldn't be put off by not being in Sydney.  
Vernon from Casino
  The solicitor assigned to our probate application was very helpful and answered all my questions.  
Linda from Western Sydney
  Solicitor was very helpful, communication with us was excellent, very quick process. Thanking you.  
Lorraine from Campbelltown
  Acted with professionalism, kept in touch and communicated well with all executors on the progress of the Probate application. Sensitive in approach. I highly recommend Probate Sydney.  
Marie from the North Coast
  Friendly, professional service.  
Gino from Ryde
  Excellent prompt service and certainly value for money.  
Peter from the South Coast
  Probate Sydney showed complete understanding and compassion, and it was not overdone. Able to offer advice on what may happen, when and consequences.  
David from Blacktown
  The thing that stood out about Probate Sydney was the timely replies to our queries and the no-nonsense approach to the whole exercise. Thanks.  
Lyall from Mooloolaba
  The professional and prompt service I received was very much appreciated. Communication was excellent in keeping me informed of what was happening. I wouldn't hesitate to recommend Probate Sydney to friends and colleagues.  
Judith from Sutherland
  I am a first time user of the Probate Sydney service and it has my full recommendation. My will contains instruction for my executor to use your service.  
John of Sydney
  Very helpful, friendly and more than willing to help. I don't think you can improve your service.  
Joseph from Blacktown
  It brought me great ease of mind being able to rely on Probate Sydney to sort everything while I was grieving.  
Jonathan from North Sydney
  Probate Sydney provided a comprehensive service with excellent communication. Clear and helpful advice when needed.  
James from the South Coast
  Our lawyer was very professional in looking after our needs and carried out the work required with a minimum of fuss.  
Len from the Inner West
  We found Probate Sydney's service and experience above standard. Our lawyer showed expertise and handled our case perfectly. Highly recommended.  
Tina from Ryde
  Quick, reliable and good communicators. I felt at ease with every step of the process. It could have been stressful but it wasn’t.  
Louise from the North Coast
  At a very emotional time for us (i.e. death of our mother) everything to do with the estate was handled expediently and professionally.  
Antoinette from the Sutherland Shire
  I think most importantly Probate Sydney gave me that feeling of caring, professionalism and that sense that I was being dealt with fairly by someone in control. In contrast I would have been trying to work my way through an unfamiliar maze. Thank you.  
Chris from Woy Woy
  Service was excellent and the regional offices made it convenient. My solicitor made the granting of Probate a simple matter. Friendly and flexible staff with most transactions completed via email. I have already recommended Probate Sydney to my friends who are at the stage of life that involves the passing of a parent and probate matters.  
Michael of Wollongong
  It is not often that I would write something nice about a firm of solicitors but I do believe that Probate Sydney deserves a good mention. In my first enquiry I was informed of everything I needed to know plus a set price which was a plus. The job was done with no fuss and at the end was less stress on me.  
Ian of Lakesland
  I found Probate Sydney to offer a very professional service at a very competitive price. I was more than pleased with the outcome they achieved.  
Michael from Winmalee
  I was more than happy with the excellent service provided by Probate Sydney. Everything was handled in a professional way and what was totally amazing was the fees were very reasonable.  
Roslyn from Redfern
  Very easy and straight forward to deal with. Probate Sydney explained details in an easy to understand manner and at a reasonable cost compared to the cost quoted by many other firms.  
John from Kellyville
  Probate Sydney provided me with an efficient service at a realistic price.  
Janelle from Sydney
  Probate Sydney were both highly professional and extremely pleasant to deal with.  
Stuart from Woy Woy
  The service provided was exceptional. All efforts were made to make things convenient for me. The service was professional, timely and competent.  
Joseph from Toongabbie
  I had no idea how to be an executor. Probate Sydney led me through the whole thing including probate and the sale of the house etc. Probate Sydney were patient with my ignorance and it all went like a dream. I didn’t have to worry about a thing and can’t thank them enough. The fees were also much lower than I anticipated.  
Monika from Casula
  I thought Probate Sydney were very helpful and professional.  
Leah from Kirrawee
  Our matters were dealt with quickly and no problems what so ever.  
Anthony from West Beach
  I found the service good, prompt, professional and value for money.  
Peter from Sydney
  Probate Sydney were really professional at a stressful time.  
Elizabeth from Queensland
  I was very happy with the way Probate Sydney attended to my needs. The fee structure was clear from the beginning and adhered to. The solicitor was prompt in his replies to my email and very courteous. There were no problems with my probate.  
Gilda from Gordon
  As a genealogist a relatives Will and Testament was required to further my family research. That Will and Testament was found and forwarded in a most professional manner. Most satisfied with the end result. Thank you.  
Ernest from WA