One of the first questions an executor faces after a loved one passes away is whether Probate is needed. The answer depends on the nature and value of the deceased's assets — and getting it wrong can cause significant delays and complications.
What Is Probate?
Probate is a formal court process in which the NSW Supreme Court recognises a Will as valid and grants the executor legal authority to deal with the deceased's estate. Once Probate is granted, the executor can collect assets, pay debts, and distribute the estate to beneficiaries.
When Is Probate Required?
Probate is generally required where:
- The deceased owned real estate in NSW — the Land Registry will not transfer title without a grant of Probate
- Financial institutions require it — most banks will not release funds above a certain threshold (often $50,000 or more) without Probate
- Share holdings exist — registries generally require Probate for share transfers
- There are disputes about the estate — Probate gives the executor legal standing to manage and defend the estate
When Is Probate NOT Required?
Probate may not be needed where:
- Assets are held jointly — jointly owned assets (joint tenancy) pass automatically to the surviving owner by right of survivorship, regardless of the Will. No Probate required.
- Small bank balances — some financial institutions will release small amounts (typically under $10,000-$50,000) to an executor without Probate, though policies vary
- Superannuation — super passes according to the fund's trust deed and death benefit nominations, not the Will. Generally no Probate required.
- Life insurance — paid directly to the named beneficiary. No Probate required.
What If There Is No Will?
If the deceased did not leave a valid Will, Probate cannot be granted because there is no Will to prove. Instead, an eligible person (usually the next of kin) applies for Letters of Administration, which serve a similar purpose. The estate is then distributed according to the intestacy rules rather than a Will.
The Probate Process in NSW
The process involves publishing a Probate Notice in the NSW Online Registry (which must remain up for at least 14 days), preparing and filing the application with the Supreme Court, and waiting for the Court to process it (currently 4-8 weeks). The executor then receives the grant and can proceed with the estate.
How Much Does Probate Cost?
Court filing fees depend on the gross value of the estate. Professional legal fees for preparing and filing the application vary. At James Papas Solicitors, we provide a clear, upfront fee estimate before proceeding. Call us on (02) 9633 3122 for a free first consultation.
Need legal advice? James Papas Solicitors offers free first consultations for all Wills & Estate Planning matters. Our offices are in Parramatta and we serve all of Western Sydney. Learn more about our Wills & Estate Planning services → or contact us today.