Updated 1 November 2026
CM Law's Ultimate 50 List - Probate Problem #2: Who is responsible for applying for probate?
Who is responsible for applying for probate in NSW?
The executor appointed by the deceased’s valid will normally applies for probate in the Supreme Court of NSW when a grant is needed. A substitute executor may apply if the will’s conditions are satisfied. Where no executor can act, an eligible person may need a different grant of representation.
Being the spouse, eldest child or largest beneficiary does not automatically make someone executor. First identify the operative will and the correct applicant; then determine which grant is appropriate.
| Circumstances |
Usual applicant |
Grant to consider |
| Valid will; executor able to act |
Executor appointed by the will |
Probate |
| Substitute appointment activated |
Substitute identified in the will |
Probate, with evidence of the trigger |
| Valid will; no available executor |
Eligible beneficiary or court-approved applicant |
Letters of administration with the will annexed |
| No valid will |
Eligible person entitled on intestacy |
Letters of administration |
How do you identify the correct executor?
Read the latest valid will and any codicils together, checking names, appointment clauses and conditions. A difference between the executor’s current name and the name in the will must be explained with evidence. Similar names, family assumptions or possession of the will do not establish entitlement to apply.
The Court’s probate guidance addresses name changes and appointments by office. A marriage certificate may explain a changed surname. An appointment of an office-holder requires evidence of entitlement. Have ambiguous wording checked before submitting an application.
When can a substitute executor apply?
A substitute executor can apply only when the event specified in the will has occurred. A clause appointing someone if the first executor dies does not necessarily operate when that executor simply refuses to act. The application must establish both the substitute’s identity and the facts activating the appointment.
Check the exact clause, rather than assuming every alternative appointment is interchangeable. Keep relevant death certificates, renunciations and supporting correspondence. If the condition is not met, a different application may be required.
Must all executors apply together?
Executors entitled and willing to act usually apply together, but probate can sometimes be granted to fewer than all those named. Every executor who is not applying must be accounted for. Renunciation, death and reserving leave to apply later involve different evidence and should not be treated as equivalent.
Under Part 78 of the Supreme Court Rules, reserving leave generally requires evidence of notice to the non-applying executor at least 14 days before proceedings commence, or evidence of legal incapacity. Obtain advice on the appropriate procedure where cooperation is difficult.
Can an executor decline the appointment?
An executor can ordinarily renounce probate before a grant if they have not intermeddled in the estate. Renunciation requires the proper signed and witnessed document; a casual message saying someone else can handle matters is insufficient. After probate is granted, an executor cannot simply resign by filing a renunciation.
Form 123 includes a declaration that the executor has not intermeddled. Seek advice before dealing with assets if you may decline the role. Reserving leave preserves a possible later application and is a different choice.
What happens if there is a will but no executor can act?
A valid will can still govern distribution even if it names no executor or every appointed executor is unavailable. An eligible applicant, usually a beneficiary, may seek letters of administration with the will annexed. The absence of an available executor does not, by itself, turn the estate into an intestacy.
The Court’s will-annexed guidance explains eligibility and supporting evidence. Where there is no valid will, the intestacy application process is different. A minor or incapacitated executor may require a limited grant. If an executor dies after obtaining probate, a statutory chain of representation may apply.
Does every estate require a probate application?
Not every estate needs a grant. The answer depends on the assets, their ownership and the requirements of banks or other asset holders. NSW land held solely by the deceased or as a tenant in common generally requires a grant before the estate can deal with that ownership interest.
Joint tenancy differs from tenancy in common: a joint tenant’s interest generally passes to the surviving joint tenant. Obtain a current title search rather than relying on family descriptions of ownership. Small bank balances may be released without a grant under the institution’s own requirements.
How is a probate application made now?
Most uncontested NSW applications are lodged through the online Probate service, supported by the required evidence. For ordinary applications, the notice is automatically published on submission. The required 14-day notice period must elapse before a grant can issue. Special applications can follow different procedures, so check the current filing requirements.
Use the Online Registry’s current instructions. Assemble the original will and codicils, death certificate, estate inventory and executor’s affidavit; follow directions for lodging original documents. Address other executors’ positions and any discrepancies. Respond promptly to requisitions, which are requests for further information or correction.
What happens if probate is not sought within six months?
If a probate application is filed more than six months after death, the applicant must explain the delay in an affidavit. This is not an automatic deadline after which the will fails or the estate becomes intestate. Delay nevertheless needs attention because assets, debts and beneficiaries’ interests may be affected.
The explanation may be included in the executor’s affidavit or a separate affidavit of delay. Give a truthful chronology and supporting detail. The six-month requirement is not an automatic financial penalty or permission to leave an estate unattended.
What can beneficiaries do if an executor refuses to act?
Beneficiaries should obtain advice about the reason for delay and the available court procedure. Section 75 of the Probate and Administration Act permits intervention where an executor neglects or refuses to prove the will or renounce within three months. Replacement is not automatic and requires the appropriate application and evidence.
Ask for a written progress update first where practicable. Keep records of unanswered requests, unpaid outgoings and risks to assets. A lawyer can assess notices, administration with the will annexed or an independent appointment. Simply announcing that another relative has taken over does not establish authority.
What does Hill v Hill show about a stalled estate?
In Hill v Hill [2023] NSWSC 612, the Supreme Court addressed an estate whose substitute executors could not progress administration together. The Court ordered administration with the will annexed to an independent administrator, subject to the Probate Rules. The decision illustrates a court-supervised solution where an appointment has become unworkable.
The deceased’s husband, her first executor, had died before her. Their two adult sons were substitute executors and beneficiaries. One son sought an independent administrator after the other failed to participate meaningfully in administration and the proceedings.
The Court remitted completion of the grant to the probate registrar. It also ordered specified, limited litigation costs to be paid from the non-participating son’s estate share. The result depended on the evidence and procedural history; ordinary disagreement does not automatically justify replacing an executor.
What responsibilities continue while probate is being organised?
An executor must take appropriate steps to preserve estate assets, keep records and address administration responsibly. Probate is not merely paperwork followed by immediate distribution. Debts, tax, claims and the terms of the will must be considered before beneficiaries receive assets, and professional help does not remove the executor’s accountability.
Acting as executor is a solemn personal responsibility. Keep estate money separate from personal funds and document decisions. Review distribution requirements before paying beneficiaries. The deceased’s power of attorney ends at death, so it cannot be used as continuing authority to operate their finances.
How can Christine Manolakos help with the application?
Christine Manolakos can review the will, identify the appropriate applicant and help resolve uncertainty about the grant required. Early advice is particularly useful where an executor’s identity is unclear, someone refuses to participate, or an appointment depends on conditions. A solicitor can prepare an application without personally becoming the executor.
Bring the will, codicils, death certificate, asset information and correspondence with other executors to your appointment. Contact CM Lawyers before signing renunciation documents or distributing assets, and explore the firm’s wills and estates articles for related guidance.
General information only, current at 1 November 2026. Have a lawyer check the will, applicant’s entitlement and procedure for the particular estate before acting.
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