Disclaimer: Probate Consultants is not a legal practice. Information on this website about the law on any subject is general in nature and is intended to provide an outline only. It is not comprehensive, nor does it constitute legal or financial advice.
Dealing with the loss of a loved one is hard enough, and sorting out their estate adds another layer of challenge. This is known as Estate Administration and, in New South Wales (NSW), often involves applying for a Grant of Probate.
Probate in NSW is a legal process that validates the deceased’s Will and authorises the distribution of their assets by the executors. Whilst many estates in NSW will require Probate, it is not a mandatory process and is not required by law. This blog explores when Probate is not required in NSW and provides useful information for when it is.
Probate Consultants empower Self-Represented Applicants (SRAs) to apply for Grants of Probate NSW and Letters of Administration NSW (LOA) by providing specialist guidance and support.
With over 4 years of experience and remarkable results in assisting SRAs, Probate Consultants is Australia’s Premium Probate Solution with affordable Fixed-Fees and Fast approval times.
Understanding Probate in NSW
Probate is a legal process where the Supreme Court of NSW certifies that:
- A person has passed away (the deceased).
- The deceased left a valid Will.
- The executor(s) named in the Will have the authority to administer and finalise the deceased’s estate.
Executors apply for Probate of a Will in NSW through the Supreme Court’s online Probate Platform. If the application is successful, they receive a Grant of Probate. A Grant of Probate is a legal document issued to the executors and operates as proof of their authority to administer the deceased’s estate.
In many cases, obtaining Probate is necessary to access the deceased’s assets, settle debts, and distribute the remaining estate according to the Will. However, the necessity of Probate hinges on the nature, value and ownership of the deceased’s assets, leading to scenarios where Probate may not be required.
When is Probate necessary in NSW?
In New South Wales (NSW), Probate is required when executors need to prove their legal right to manage the property, assets, and affairs of someone who has passed away.
Institutions like banks, aged care facilities, and share registries commonly request a Grant of Probate to allow access to the deceased’s assets. However, Probate isn’t always necessary—sometimes, just certified copies of the Death Certificate and Will are enough.
Whether Probate is needed depends on the nature and value of the assets and the policies of the institutions that hold or manage them.
You need a Grant of Probate NSW in the following situations:
- Seeking the refund of an Accommodation Bond (RAD) from an aged care facility
- Transferring the title of real estate that was held solely by the deceased, or as tenants in common
- Accessing funds in a bank account over a certain value, usually $50,000.
- Dealing with a shareholding over a certain value, usually $50,000.
- Accessing Superannuation that is payable to the estate
For more information, read our blog: When is Probate required in NSW?
Several circumstances allow for the management and distribution of a deceased estate without the need for Probate:
- Surviving Joint Tenant: Real estate and other assets held as joint tenants automatically transfer to the surviving owner(s) upon death. This sidesteps the need for Probate, as the asset is not part of the deceased’s estate to be administered.
- Small Estates: Executors in NSW may bypass the need for Probate if the assets held fall below the ‘small estates’ threshold set by each asset holder. The threshold for what constitutes a ‘small estate’ varies, and direct consultation with financial institutions or asset holders can determine if Probate can be avoided based on the value and nature of the assets.
- Binding Nominations: Probate is not required where the deceased had Superannuation and/or Life Insurance that is payable to nominated beneficiaries, rather than to their estate. Probate may be required where the nomination is non-binding or has lapsed and the Super Fund or Insurer has opted to pay the estate.
- Intestacy: When a person dies without a Will, there is an intestacy. While this situation avoids the need for Probate, the deceased’s Next-of-Kin may still need to apply for Letters of Administration to manage the estate and finalise their affairs.
For more information read our blog “How to Avoid Probate in Australia”.
Practical Steps to Determine if Probate is Not Required
Here are a few practical steps to determine if Probate is necessary in New South Wales:
- Contact Asset Holders and other Institutions: To determine if Probate is necessary, start by initiating conversations with the deceased’s financial institutions and other asset holders. Enquire whether they require a Grant of Probate to release assets or transfer ownership. This step is crucial for understanding the specific requirements of each institution involved.
- Consult with Lawyers: Estate Lawyers can clarify whether Probate is necessary and provide legal advice relating to the application and estate administration.
- Contact Probate Consultants: We offer a Free Consultation to assist executors to understand when Probate is required in NSW. There are no timers and never any obligations. We are here to help in any way we can.
Conclusion
Understanding when Probate is not required in New South Wales (NSW) is crucial for executors tasked with administering a loved one’s estate. In some cases, Probate can be avoided, but a Grant from the Supreme Court is typically necessary for larger estates.
Executors in NSW have four main options for applying for Probate. Choosing the right pathway is essential, as it influences the costs, timeframes, and overall experience of the process.
Probate Consultants is Australias top-rated Probate solution known for making the process Fast, Affordable and Easy for SRAs. If you would like to learn more about Probate, or discuss an application, call us today on 1300 561 803 for a Free Consultation.
Frequently Asked Questions
Note: The information provided is general in nature and is intended to offer an outline only. It is not comprehensive, nor does it constitute legal advice.
No, not all Wills require Probate in NSW. Probate is only necessary when an asset holder or other institution requests it before allowing executors access to the deceased’s estate.
Probate can be avoided in NSW where:
- The deceased’s estate is considered small
- The deceased owned assets jointly
- There is a binding nomination (Super & Life Insurance)
- There is no Will
Where a deceased person owned property solely, or as tenants in common, Probate is required to transfer title in NSW. If the property was owned as joint tenants, Probate is not required as the rule of survivorship operates and ownership automatically passes to the surviving joint owner(s).
Banks will require Probate to release the deceased’s funds where they exceed a certain threshold, usually $50,000. Banks might release funds without Probate for small estates below the relevant limit. A certified copy of the Will and Death Certificate is usually required.