When a person dies leaving a Will, the executor named in that Will will usually need to apply for probate before they can administer the estate. Probate is not simply a formality. It is the Supreme Court’s confirmation that the Will is valid and that the executor has authority to deal with the deceased’s assets.
This article explains when probate is required in New South Wales, how the process works in practice, and where executors commonly encounter delays or complications.
What probate actually does
Probate is a grant made by the Supreme Court of NSW that:
It does not determine who is entitled to inherit, nor does it prevent disputes from being brought later. Its purpose is evidentiary: it allows third parties such as banks, share registries and land titles offices to rely on the executor’s authority.
In practice, most institutions will not release or transfer assets without sighting a grant of probate.
When probate is required
Probate is commonly required where the deceased owned:
real estate in their sole name,
substantial bank balances,
shares or managed investments, or
assets held with institutions that require formal authority.
Some small estates can be administered without probate, particularly where assets are modest and held with a single institution. However, thresholds vary, and many banks now insist on probate even for relatively small balances.
If the deceased owned real estate solely in their name, probate is almost always required.
When probate is not the right process
If the deceased did not leave a valid Will, probate cannot be granted. In that case, an eligible person must apply for letters of administration, and the estate is distributed according to the intestacy rules.
Similarly, if a Will exists but:
cannot be located,
is damaged or incomplete, or
is subject to serious validity concerns,
the process may involve additional court applications or evidence before probate can be granted.
Advertising the intention to apply
Before filing a probate application, the executor must publish a Notice of Intended Application on the NSW Online Registry.
This notice:
alerts creditors and interested parties,
allows time for objections to be raised, and
is a mandatory procedural step.
There is a minimum waiting period (currently 14 days) between publishing the notice and filing the application. This requirement is often overlooked by executors attempting to apply without advice, leading to rejected applications and delays.
Preparing the probate application
A standard probate application includes:
the original Will (and any codicils),
the death certificate,
an inventory of the deceased’s assets and liabilities,
an executor’s affidavit, and
the filing fee payable to the Court.
The affidavit must address any issues with the Will, such as alterations, unusual execution, or damage. These matters are not uncommon and must be explained clearly. Courts do not expect perfection, but they do require transparency.
If the Will is professionally drafted and properly executed, this step is usually straightforward. Homemade or online Wills often require additional evidence.
Common issues that delay probate
In specialist practice, delays most often arise from:
discrepancies in names or addresses,
missing pages or staples in the Will,
handwritten changes not properly witnessed,
uncertainty about whether a document is the deceased’s last Will,
executors failing to properly explain unusual features of the Will.
None of these issues are necessarily fatal, but they require careful handling. Attempting to “push through” a defective application often leads to requisitions from the Court and further delay.
What happens once probate is granted
Once probate is granted, the executor can:
call in estate assets,
close or transfer bank accounts,
sell or transfer real estate,
deal with share registries and investment platforms, and
administer the estate generally.
It is important to understand that probate does not:
prevent family provision claims,
validate the fairness of the Will, or
shield the executor from later disputes.
It simply allows administration to proceed.
Timeframes
There is no fixed timeframe for probate, but in straightforward estates:
preparation usually takes several weeks, and
the Court typically processes uncontested applications within a few weeks of filing.
Delays arise where documents are incomplete, issues with the Will are not properly addressed, or disputes are anticipated. Executors should also factor in time for asset identification and post-grant administration, which often takes many months.
Costs of applying for probate
Costs generally fall into three categories:
the Supreme Court filing fee,
legal costs for preparing and filing the application, and
incidental expenses such as advertising.
Probate costs are paid from the estate, not by the executor personally. The complexity of the Will and the estate will largely determine the overall cost. What appears to be a “simple” estate can quickly become complex if the Will is poorly drafted.
Should executors apply for probate themselves?
Executors are legally entitled to apply for probate without a lawyer. In practice, this is where many problems arise.
Probate applications are technical. Errors do not usually invalidate the application, but they often cause delays, additional expense, and frustration at an already difficult time. Where there are:
professional assistance is usually a sensible investment. Particularly where an executor may be personally liable for mismanagement of an estate.
Probate and family provision claims
It is a common misconception that probate must be delayed until all potential claims are resolved. In fact, probate can usually be obtained even where a family provision claim is anticipated.
What matters is that executors do not distribute the estate prematurely. Eligible persons have 12 months from the date of death to bring a family provision claim, and executors who distribute too early may face personal liability.
Getting advice early
Probate is the gateway to estate administration. When handled properly, it allows the executor to move forward with confidence. When mishandled, it can stall the entire process.
Early advice is particularly important where:
the Will is informal or unusual,
there is more than one Will,
the estate includes real estate or business interests, or
there is a real risk of dispute.
A short consultation at the outset often prevents months of delay later.
Key takeaway
Probate is not just paperwork. It is the legal foundation that allows an executor to administer an estate. Understanding when it is required, how the process works, and where problems arise is critical to ensuring estates are administered efficiently and correctly.
