Probate and duties of executor
When a person dies leaving a will, certain legal procedures have to be followed before the estate can be distributed to beneficiaries. The will should appoint someone as executor who is responsible for completing these procedures.
The executor's role in administering the estate
An executor is responsible for:
- finding the will
- arranging for disposal of the body
- getting the death certificate from the Registry of Births, Deaths and Marriages
- ascertaining the deceased's assets and liabilities
- assessing the value of the deceased's assets
- obtaining probate if required
- paying the deceased's debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
A grant of probate can only be made if there is a will. However, often the family does not know whether the deceased left a will or where it can be found. If you cannot find a will in the deceased's personal papers, check with their bank or solicitor, or NSW Trustee.
Obtaining a death certificate
Usually, the funeral director arranges registration of the death and all you have to do is complete a death certificate application form, identifying yourself and your reason for wanting the certificate. Alternatively, the funeral director can obtain the death certificate on your behalf. Forms are available from the Registry of Births, Deaths and Marriages. The Registry will only be able to provide a death certificate if the death has been registered. If the death occurred outside New South Wales, you will need to contact the Registry office for the relevant state or territory.
In NSW, certificates are available to the:
- next of kin listed on the certificate (spouse, parent or child of the deceased)
- funeral director (within two months of the registration)
- solicitor acting for the next of kin or estate
- executor of the estate.
As well as three forms of your personal identification, you will need to provide:
- personal details of the deceased
- when and where the death occurred
- the full names of the deceased's parents
- details of the deceased's spouse.
If you are a relative that is not listed on the death certificate, there are extra requirements for obtaining a certificate. The cost of the certificate is $46 or $68 for an urgent request (these amounts were current as at August 2011).
Why you will need the death certificate
You will need to produce the death certificate for various purposes, such as:
- claiming insurance
- claiming superannuation
- drawing on the deceased's bank account
- claiming for funeral benefits.
It is therefore a good idea to make a few photocopies and have each one certified as a true copy of the original by a person authorised to make such an endorsement. Any justice of the peace, lawyer or registrar of the local court or magistrate has this authority. The original death certificate is required for making an application for probate or for Letters of Administration.
Since 1989 the court may consider that a document is a will, even if the document has not been executed in accordance with the formal requirements of the Act. The court must be satisfied that the deceased person intended the document to be their will.
A minimum requirement to satisfy section 8 of the Succession Act 2006 is that there is a 'document'. However, a tape recording by the deceased person has been admitted as a will in exceptional circumstances. More usually, documents that do not satisfy the formal requirements in some way (for example, with respect to witnesses) have been admitted. If you are not sure whether a document is a valid will, you should refer it to a lawyer.
Before an executor applies for probate, they will have to carry out some basic investigation work such as locating the deceased's assets and liabilities, assessing the value of their assets, and finding out what asset-holding institutions require before they will release funds.
What is probate?
Probate is an order from the Supreme Court stating that the will has been proved to be the last valid will of the deceased, and allowing an executor to collect and distribute the estate in accordance with the terms of the will.
Probate will always be necessary if the deceased died owning real estate except if it is owned as joint tenants (see If the deceased owned property with someone else). Generally, when an estate is very small (less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain probate or letters of administration. The need for a grant of probate also depends on the form in which the assets are held. Some asset holders will require you to produce a grant of probate before they will release assets above a certain value.
If the application for probate of the will is uncontested, the grant of probate will be in what is called common form, which means that the grant can be overturned (revoked) in certain circumstances. If the application is contested, and all interested parties have the chance to take part in the court proceedings, the grant will be in solemn form. A grant made in solemn form can only be revoked in exceptional circumstances.
Locating assets and liabilities
The initial task of locating assets and uncovering any debts usually involves writing to the asset-holders and creditors asking for details of the assets and debts, and their requirements for release. A bank, for example, will advise whether or not they require evidence of probate before releasing the deceased's funds to you.
After obtaining the grant of probate, you should consider opening a bank or building society account in the name of the estate (to avoid confusion with your personal money) into which the released assets can be paid. Any debts can be paid from this account once probate has been granted. The funeral account can be paid from the deceased's bank account before probate.
Applying for a grant of probate
You can apply for a grant of probate through:
- a solicitor
- a trustee company
- NSW Trustee and Guardian.
The procedures outlined below are not intended to be a do-it-yourself guide; they are only an indication of what the process involves.
Prior to 21 January 2013 you must insert an advertisement in a newspaper at least 14 days before applying for probate announcing that probate is being applied for. From 21 January 2013 this notice of intention to apply must be made on the Supreme Court Online Registry website. The cost at the moment is $40.00 and payment can only be made by credit card. Notices published in a newspaper from 21 January 2013 will no longer be sufficient.
The Supreme Court website has details of this change including frequently asked questions. You can also preview how the online form will work, but it cannot be used until 21 January 2013.
The reason for this notice is to give anyone who knows of another will, creditors, or others with an interest in the estate an opportunity to submit their claims.
Summons and affidavit
The probate application requires two documents to be filed with the Probate Office of the Supreme Court of NSW:
- a summons for probate
- an affidavit of executor.
More documents may be required if it is a complex application.
- Frequently asked questions about probate
- Probate filing instructions
- Probate forms - NOTE: on 21 January 2013, all of the probate forms previously found in Schedule F of the Supreme Court Rules 1970 were repealed and replaced by the approved forms (forms approved for use under the Uniform Civil Procedure Rules 2005, "UCPR").
In the affidavit the executor swears that they will administer the estate according to the law and that they know of no reason why they should not be granted probate of the will.
The affidavit must be filed with the following documents:
- the will
- the death certificate
- a copy of the newspaper advertisement
- an inventory of the deceased's assets and a list of their liabilities.
The affidavit must also contain a statement as to whether the deceased had left any other document attempting to set out their testamentary intentions. If any information is missing or a form has been filled out incorrectly, you will be asked in writing to correct the problem. This is known as a requisition.
It is also necessary to pay a filing fee. This fee depends on the value of the estate and is calculated as follows:
|Value of the estate||Fee|
|$1,000,001 - $2,000,000||$1,800|
|$2,000,001 - $5,000,000||$3,000|
|More than $5,000,000||$5,000|
The figures above were accurate as at 1 September 2012. Fees may be paid in cash, by EFTPOS, credit card, bank cheque or by money order made out to the Supreme Court. Personal cheques are not accepted.
Granting of probate
If there is no dispute about the will, you will be granted probate in common form. Probate will not be granted if the court has decided that the will is invalid (for example, that it is not the last will of the deceased), and a court case may result. When a disputed will has been approved by a court, probate is granted in solemn form.
From 1 June 2009 the Supreme Court Rules 1970 were amended for lodging probate (and Letters of Administration) applications. Details are set out in Part 78.10 of the Rules. The change is intended to reduce delays in the issuing of the grants. A stamped self-addressed envelope must be provided with the Summons and two sets of prescribed documents.
If no executor was appointed
If no executor was appointed in the will, the court will appoint an administrator, usually the major beneficiary, to carry out the terms of the will (Probate & Administration Act 1898, section 74).
If the executor does not wish to act
A person appointed as executor does not have to accept that responsibility. If a person doesn't want to be the executor, they can give up their right to obtain probate by filing a renunciation with the registry. The executor can appoint the NSW Trustee or a private trustee company to take their place. Alternatively, one of the beneficiaries can apply to the court to become the administrator of the estate (Probate & Administration Act 1898, section 74).
If the executor dies before the will-maker
This frequently happens when the will is old. If there is no executor or substitute executor, the court will appoint an administrator, usually the beneficiary with the largest share of the estate.
If the executor dies soon after the will-maker
In this situation the executor of the dead executor's will also becomes executor of the deceased's estate, if the executor obtained probate before he died. This situation may be avoided if the will-maker chooses more than one executor initially.
If the executor is under 18 years of age
Where the sole executor is under 18 years of age, the court will appoint the minor's guardian, or any other person it considers suitable, as executor until the minor reaches 18 years of age.
Payment of executors
The will-maker may specifically state that the executor should be paid for their work in the estate, and how much. Even if this is not done, the executor may apply to the Supreme Court for a commission for the work that they have performed (Probate & Administration Act 1898, section 86). Solicitors who act as an executor may also apply for this commission. Being an executor can involve a lot of time and effort.
Commission cannot be applied for if the will provides an amount for the work and prohibits an application for commission as well.
The executor's role ends once they have collected the assets of the estate, paid the debts and distributed the balance to the beneficiaries. However, if the deceased has made certain provisions in their will (for example, for the support and maintenance of young children or for the administration of a sum of money for someone's benefit) a trustee will be needed. Usually, the person appointed as executor is also appointed trustee. A trustee's role involves managing money or assets for the benefit of certain beneficiaries.
Trustees can be given wide or limited powers under the will. Trustees with wide powers can manage the property for the good of the beneficiary in any way they see fit (subject to their responsibilities, as set out below). Trustees who have limited power must manage the property only in the ways specified in the will.
The duties and responsibilities of trustees are set out both in the will and in the Trustee Act 1925 which imposes strict rules on the conduct of trustees. Trustees are generally expected to act honestly and in good faith when carrying out their duties. A professional trustee, such as a trustee company or the NSW Trustee, has a higher duty of care and skill than a non-professional trustee. Trustees are also required to act in the best interests of the beneficiary of the trust at all times, unless the will states otherwise (as may happen in a discretionary trust will: see Testamentary trust wills).
Accounting by trustee
If a beneficiary has any concerns about the way the trustees conduct their duties, they should request that the trustees provide an 'accounting' that shows how the trust money has been invested and how income and capital have been used. Trustees who use trust money improperly may be legally required to repay the beneficiaries. Beneficiaries who suspect improper behaviour from a trustee should seek legal advice.
Rest Assured: a Legal Guide to Wills, Estates and Funerals in New South Wales, 5th edition, by Rosemary Long and Trudy Coffey. Published by The Federation Press, 2011. Online edition published by the Legal Information Access Centre, State Library of NSW.
© Library Council of New South Wales, 2011.