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When a loved one passes away leaving a significant estate, an application must generally be made to the Supreme Court of NSW before the estate’s asset-holders will release them to the executor to pay the estate’s debts and distribute the balance.
If the deceased made a Will appointing you as an executor, you may have to apply for a grant of probate.
Executors in NSW
An executor is the person appointed in a Will to ensure that the wishes of the will maker (the testator) are carried out in accordance with their Will.
Carrying out the role of executor
The deceased’s assets are frozen until probate has been granted. An executor can access the deceased’s bank account only to pay funeral expenses and court fees and legal fees relating to the grant of probate.
Executors’ duties
Executors are entrusted with overseeing the probate process, which encompasses managing and distributing the deceased’s estate according to their final wishes and the law.
Understanding an executor’s role
The executor’s role in the probate process is as the deceased’s legal representative, managing the estate so that all assets are distributed in accordance with the Will. They also hold a fiduciary duty to act in the best interests of the beneficiaries and the estate: they must carry out their tasks with diligence, honesty, and integrity.
An executor’s legal authority includes dealing with creditors, making financial decisions on behalf of the estate, and handling tax obligations. An executor must follow probate law and the terms of the Will.
What are the executor’s duties?
Executors must handle multiple tasks accurately and within legal timeframes. An executor is responsible for organising the funeral and cremation or burial of the deceased.
An executor is also responsible for dealing with the estate’s assets and liabilities, which may include selling property, paying debts and distributing funds between beneficiaries.
An executor’s duties are to:
- locate the final Will;
- administer the estate in the beneficiaries’ best interests;
- keep accurate records of transactions completed in relation to the estate;
- communicate with the beneficiaries promptly and clearly;
- finalise the estate within a reasonable time (generally one year from the deceased’s death);
- give beneficiaries final statements confirming finalisation of the estate.
An executor’s duties during probate include:-
Identifying and valuing estate assets
Executors must obtain valuations to determine the estate’s total value.
Notifying beneficiaries and creditors
Executors must notify all beneficiaries named in the Will, keeping them updated on the probate process and informing them of their entitlements.
Executors should also inform creditors of the deceased’s passing.
Paying debts and taxes
The executor must settle any outstanding tax liabilities and debts, file the deceased’s final tax return, and pay any taxes owed by the estate.
Distributing assets to beneficiaries
Once debts and taxes are settled, the executor can distribute the remaining assets to beneficiaries in accordance with the Will.
Keeping accurate records and adhering to legal deadlines
Executors must maintain detailed records of all transactions, communications, and decisions they make on behalf of the estate and adhere to strict deadlines.
Duty to not fetter discretion
If there is more than one executor, decisions must be reached jointly, by majority, or unanimously, as specified in the Will. All co-executors must co-sign and jointly consent to administrative decisions.
Duty to act personally
Executors have a duty to act personally in the administration of an estate. If there are multiple executors, they should consult with each other.
Delegation of tasks does not absolve an executor of their responsibilities.
Executors who fail to meet these responsibilities may face legal challenges or personal liability.
An application for probate is prepared and filed with the Supreme Court of NSW.
After probate is granted, the executor can administer the estate, obtaining monies from financial institutions, selling or transferring property, paying debts and tax and distributing the proceeds of the estate in accordance with the Will.
Before distributing the estate’s assets, the executor should also:
- obtain expert accounting advice as to the estate’s tax liabilities; and
- post a notice on the court website that the executor is going to distribute the estate assets and giving anyone who believes they have a claim on the estate one month to make the claim. The law protects an executor who posts a notice from claims by creditors and other claimants of whom the executor is unaware at the time of distribution (except the ATO).
However, claims may still be made against the beneficiaries (including the executor if they are also a beneficiary).
What if the executor won’t give you a copy of the Will? (NSW)
If the executor won’t give beneficiaries or family members a copy of the Will, or if their behaviour is in other ways detrimental to beneficiaries, they can be held to account.
The Succession Act 2006 sets out the classes of persons entitled to inspect a deceased person‘s Will. A person who has a copy of the Will must give access to the Will to:
- Anyone named in the Will;
- The deceased’s child, spouse or partner;
- The deceased’s parent or guardian;
- Anyone who would be entitled to inherit from the deceased under the laws of intestacy;
- The parent or guardian of a minor referred to in the Will or entitled to inherit under the laws on intestacy;
- Someone named as a beneficiary in an earlier Will by the deceased;
- Someone who may have a claim in law or equity against the estate of the deceased;
- An attorney under an enduring power of attorney made by the deceased;
- Anyone committed with managing the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before their death; and
- Anyone belonging to a class of person prescribed by the regulations.
Passing over an executor who won’t provide a copy of the Will
If an executor is unsuitable to act in the role or is behaving inappropriately, a beneficiary may apply to the Supreme Court of NSW to have them passed over. This means that someone else is appointed as executor in place of the unsuitable executor.
Courts are generally reluctant to overrule the deceased’s wishes as to who administers their estate and will not pass over an executor lightly. However, if there are serious concerns supported by evidence about an executor’s ability or suitability to act in the role, the court will pass them over and appoint someone else instead.
Removing an executor who won’t provide a copy of the Will
If a person named as an executor has already been granted probate and concerns arise about their behaviour, a beneficiary may apply to the Supreme Court to remove them as executor. The application must be accompanied by evidence of why the person is not capable of or suitable to act as an executor. An executor refusing to give a beneficiary a copy of the Will may be sufficient evidence.
If the court is satisfied that an executor has been guilty of significant misconduct or is not capable of carrying out their executorial duties, it will remove them as executor and appoint another person in their place.
What is a grant of probate?
In NSW, a grant of probate is a legal document issued by the Supreme Court of NSW authorising an executor to follow the provisions of the Will in managing a deceased estate.
The executor gives a certified copy of the grant of probate to the estate’s asset holders who then transfer the assets to the executor or beneficiaries named in the Will.
The Court can grant probate only for assets in New South Wales. In some instances, only a reseal of the NSW grant may be required for assets located outside NSW. Otherwise, the executor may have to an apply for probate to another State or country’s court.
Must I obtain a grant of probate?
If the estate assets are of minimal value, an asset holder may release assets without a requiring a grant of probate.
Assets held by the deceased as a co-owner with a surviving beneficiary when no one owner owns distinct shares of the property (“joint tenants”) do not require a grant of probate: the property automatically passes to the surviving joint owner.
A grant of probate is required if the deceased owned real estate in their sole name or as a tenant in common (i.e. as a distinct share) with one or more surviving beneficiarys.
What are asset holders' requirements to release assets?
Asset holders differ in their requirements for releasing assets. An asset holder may agree to transfer the assets without a grant of probate if the executor gives them documents such as:
- a certified copy of the death certificate;
- a certified copy of the Will;
- a declaration by the beneficiary as to their entitlement;
- an indemnity by the executor (in case there is a later claim on the estate).
Proceeds of a life insurance policy may not be considered part of the estate. Superannuation is not part of the estate. A superannuation fund or life insurer may nonetheless require probate before they will decide who is entitled to superannuation or insurance proceeds.
What is the timeline for lodging an application?
A probate application should be filed within 6 months after the death of the deceased.
Who can apply?
Probate can only be applied for if the will-maker (“the testator”) has nominated an executor in the Will. If no executor has been nominated, a beneficiary named in the Will can apply for Letters of Administration with the Will annexed.
A testator may nominate an executor as their first choice (“the instituted executor”) and an alternate executor (“the substitute executor“) in case the instituted executor predeceases them or is unable or unwilling to act.
What if I don't want to be the executor?
If an executor appointed in a Will is unwilling to take on the role, they can renounce probate and any remaining executor can apply.
An executor cannot renounce probate after a grant has been made unless the Court revokes the grant.
An executor may delegate their duties only to the NSW Trustee and Guardian or to a trustee company.
What if I can only find a copy of a will?
If the original will cannot be found but there is a copy believed to be the deceased’s last will, the executor named in the copy may apply for probate. They must conduct searches for and make enquiries about the Will and may have to file evidence showing that the deceased did not intend to revoke the Will.
Can I get probate of a will which fails to meet the formal requirements?
Can I put a grant of probate on hold?
Anyone with an interest in a deceased estate can file a caveat which prevents the Court from issuing a grant of probate for 6 months.
A caveat can be removed if the Court finds for example that:
- the caveator has no standing; or
- there is no real dispute as to the Will’s validity.
Can I be paid for being an Executor?
Whilst an executor is normally expected to act gratuitously, they may be paid for their time and effort in administering the estate.
Am I entitled to executor’s commission?
Executors are entitled to be reimbursed for reasonable expenses they incur in administering a deceased’s estate. But being an executor does not automatically entitle you to payment from the estate.
If you’re an executor and also a beneficiary under a Will, its presumed that the gift left to you as beneficiary is your payment for being executor. However, the Will-maker can provide in their Will for a payment to the executor for their work in addition to the gift.
If there is no such provision in the Will but there are special circumstances to overturn the presumption, the executor may be entitled to executor’s commission. The executor must apply to the Supreme Court of NSW that commission be paid to the Executor from the assets of the estate for their “pains and trouble as is just and reasonable”.
Remuneration clause in the Will
A Will-maker may specify an amount of an executor’s remuneration. This may be in the form of:
- commission;
- a pecuniary gift in lieu of commission; or
- a percentage of the value of the estate.
If an independent professional (such as a lawyer or accountant) accepts appointment as executor, they may require to be paid for the work. The remuneration clause in the Will would normally reflect this.
Claiming executor’s commission
An application must normally be lodged with the Supreme Court of NSW to claim executor’s commission. Alternatively, if all the affected estate beneficiaries are over 18 years and agree that the executor should be paid commission, you need not seek the court’s approval. Affected beneficiaries are usually those who are left the remainder of the estate after the distribution of any specific gifts or bequests.
If not all the affected beneficiaries consent to the payment of executor’s commission, or can’t agree on the amount, the court will determine your entitlement to commission. An application to the court for executor’s commission must be accompanied by the estate accounts.
What does the court consider?
The court’s main consideration will be the “pain” and “trouble” you encountered in administering the estate. The “pain” aspect refers to the responsibilities and worry of completing the tasks you undertook, while the “trouble” covers the work that you completed.
How much can an executor receive?
There is no scale setting out how much commission an executor can receive: applications are determined on a case by case basis. However, as a general rule, 1% to 2% commission on the value of assets is usually granted. The test will ultimately be – what amount is just and reasonable after considering the “pain” and “trouble” the executor has encountered in administering the estate.
What is a Probate Requisition?
The Supreme Court of NSW has exacting requirements for a probate application to be complete and accurate. If the application is incomplete or inaccurate, the Court will issue a probate requisition which notifies the applicant that they have not fulfilled at least one of the requirements of the application. There can be considerable delays until the requisition is satisfied.
A requisition may force the executor to file further documents with the court or amend existing documentation. It may be issued if the Court needs further information to clarify some aspect of the application.
Fees may be payable when lodging additional documentation.
How can I avoid getting a probate requisition?
If you are unfamiliar with the process of obtaining a grant of probate, it can be difficult to correctly complete the documentation. We highly recommend that you consult an experienced solicitor to avoid mistakes.
Reseal of Probate in NSW
What is a reseal of probate?
Probate laws differ between states and countries. Assets located outside NSW usually cannot be dealt with under a NSW grant of probate.
A reseal of probate is an application to another state’s Supreme Court to have a NSW grant of probate recognised in that other state. It allows the executor to deal with estate assets located in that other state.
Why get a reseal of probate?
A reseal of probate is proof that the named executor or administrator is authorised to deal with the estate’s assets. The asset holder may require the grant before releasing the asset.
What is the effect of a reseal?
An asset holder must accept a resealed foreign grant as if it had been made by that state’s Court. The executor can then gather in and distribute to beneficiaries the deceased’s assets located in that state.
Must I get a reseal?
Depending on the type, size and value of the assets located in another state, you may be exempted from the requirement to obtain a reseal by signing a declaration and/or indemnity. Each asset holder will have different requirements, including proof of the original grant and death certificate.
Shares may be released or transferred without the grant having to be resealed if it has been issued in Australia and a section 1071B statement is completed.
How do I get a reseal?
By filing in the Supreme Court of NSW documents annexing information required by the legislation and court rules and advertising online via the Court’s website
Administration of a deceased estate
With extensive experience in probate and estate administration, we can advise, support and guide you through the estate administration process.
We can ease your burden at this stressful time by:
- advising organisations of your loved-one’s passing;
- applying to the Supreme Court of NSW for a grant of probate;
- providing asset holders with the documents required to release estate assets; and
- gathering in the assets, paying debts, then distributing the balance to the beneficiaries in accordance with the Will.
What is Transmission of Estate Assets?
The executor (if there is a Will) or administrator (if there is no Will) is responsible for the administration of the deceased estate’s assets in a timely manner in accordance with the Will. For simplicity, hereafter we refer to the executor or administrator as the legal personal representative (LPR).
Before the LPR can deal with the estate assets, they may need to be transferred to the LPR. If the deceased owned property in NSW, the LPR must lodge a transmission application in NSW, by which the deceased estate’s assets are transferred to the LPR or to the beneficiaries named in the will.
A transmission application transfers property of a deceased sole proprietor or a tenant in common of real property.
Depending on the circumstances, a Transmission to Beneficiary or a Transmission to Executor may be lodged.
A transmission application in NSW can be lodged electronically through an Electronic Lodgment Network Operator (ELNO) like PEXA or Sympli. However, a lawyer must lodge their transmission application with the NSW Land Registry Services for them.
The LPR must also provide to their lawyer:
- details of the property
- original or certified copy of the Grant of Probate or Letters of Administration; and
- address for service of notices for the electronic notice of sale (eNOS)
If the LPR has received property from a deceased estate “in accordance with the terms of the will” the estate pays $50 transfer duty.
Other information the LPR must provide when lodging a Transmission to Beneficiary include:
- Grantee Details (Executor, Executor by Representation, Administrator, or Trustee)
- Details of Death
- Notice of Sale
- Written permission from the Grantee
If NSW Land Registry Services is satisfied with the LPR’s submitted transmission application, they will update the title in the name of the devisee, beneficiary or next-of-kin.
Form 03AE is used to record the nominated executor, administrator, or trustee of a deceased estate. All the properties or share of properties of the deceased are transferred to the LPR.
When lodging a Transmission to Executor the LPR must provide:
- Details of Death; and
- Evidence Details.
An Application for Transmission to Executor does not require payment of stamp duty. The LPR may lodge an application after filling out the necessary form and preparing all the required attachments.
Once transferred, the LPR may distribute the property to the beneficiaries, make decisions about dealings relating to the property, or sell the property.
