Updated 23 October 2026
Probate Problem #33: What is an Affidavit of Executor?
An affidavit of executor is a written statement that an executor swears or affirms to be true when applying for probate in New South Wales. It gives the Supreme Court evidence about the deceased, the will, the executor's entitlement to apply and the estate. It is an essential part of an ordinary probate application.
The affidavit is more than confirmation that you are willing to act. Its contents must match the will, supporting records and application documents. Missing information or unexplained differences can lead to requests for further evidence, delaying the grant. Preparing carefully at the beginning helps the Court assess the application and gives beneficiaries a clearer understanding of progress.
What the affidavit of executor must cover
The standard affidavit is UCPR Form 118. In a routine application, it addresses the deceased's identity and death, the document believed to be their last will, how the executor identifies that document and the witnesses who signed it. It also deals with relevant marriage information and the applicant's entitlement to obtain probate.
Further information includes the beneficiaries and their entitlements, known assets and liabilities, the estate's gross and net values, and any circumstances raising doubt about the application. The executor undertakes to administer the estate according to law and disclose further assets that come to their attention.
This evidence supports the Court's decision. Signing the affidavit does not itself establish that a disputed will is valid or entitle beneficiaries to immediate distribution. If there are questions about another will, an executor's appointment or the deceased's capacity, they need to be addressed through appropriate evidence and procedure.
Start with the original signed will, any codicils and the death certificate. Obtain information about bank balances, property ownership, investments, debts and the people entitled under the will. Check names and dates against the source documents instead of relying on memory or an old family spreadsheet.
Differences should be explained rather than concealed. An executor may now use a married surname, or the deceased may be known by different names in their will and death certificate. Ask what supporting evidence is required. A clear explanation at the outset is usually more useful than leaving the Registry to identify an inconsistency.
If another named executor is not applying, explain why and provide the necessary supporting material. A substitute executor must also establish that the condition activating their appointment has occurred. Being willing to help the family does not, by itself, establish an entitlement to apply for probate.
How the affidavit relates to the inventory of property
The Inventory of Property, Form 117, identifies assets and their estimated or known values. It is connected to the executor's affidavit, which also records liabilities and estate totals. The figures should reconcile. Supporting bank information and appropriate valuations help avoid guesses about what the deceased owned.
Ownership matters as much as value. The inventory distinguishes assets held solely from those held as joint tenants; the deceased's share as a tenant in common is recorded separately from joint tenancy property. Listing a jointly owned asset does not necessarily mean it can be distributed under the will. Check the title and legal ownership before describing the estate.
Swearing or affirming the affidavit correctly
The executor must swear an oath or make an affirmation before an authorised witness, such as a solicitor or justice of the peace. Both are solemn confirmations that the contents are true. The executor and witness must sign each affidavit page and complete the required witnessing details.
Read the whole document, including its attachments, before signing. Do not sign blanks or confirm a fact you have not checked. Where information is uncertain, obtain advice about the evidence required. An authorised witness verifies the execution process; witnessing does not guarantee that the estate information is accurate.
The current Legal Aid NSW affidavit instructions also address restrictions on generative AI and required declarations. Do not use an AI-generated narrative as your sworn evidence. Follow current court requirements and seek advice about any permitted exception.
The current online probate process
Most uncontested applications are prepared through the NSW Probate Service. The service asks questions about the deceased, the estate and the applicant, then generates documents to download, check, sign and upload. Automatic form generation does not remove the need to verify the answers.
The Online Registry's current guide explains that publication of the notice of intended application is incorporated into submission. Follow the current service instructions rather than an older guide requiring a separate preliminary notice. The applicable notice period still needs to expire before a grant can be made.
Uploading a scan does not replace the requirement to lodge the original will and any codicils as directed. Keep copies and use the covering letter or case reference required by the Court. Preserve the original documents and follow instructions for identifying them; avoid unnecessary markings or changes.
When an affidavit of delay is required
If the probate application is filed more than six months after death, the Court requires an explanation for the delay. This can be included in the affidavit of executor or given in a separate affidavit of delay. The Supreme Court's application guidance explains this requirement.
There is no dedicated prescribed form for a separate affidavit of delay; Form 40 can be adapted. Explain the actual chronology and reasons, such as difficulties locating documents or resolving questions about the will. An online sample cannot supply the facts of your estate. Passing six months does not automatically invalidate the will or prevent a grant.
What happens if the Court raises requisitions
A requisition is a request to correct the application or supply further information. It is not necessarily an allegation of wrongdoing. The response may require a corrected form, another affidavit or supporting documents. Read each request carefully and address it directly.
The Court will not grant probate while relevant requisitions remain unanswered. Further requests may follow an incomplete response, and failure to respond or request more time can lead to dismissal. Keep a record of what has been requested, who is obtaining each document and when the response is due.
A real NSW case about responding to probate requisitions
In Estate of Bernadette Therese Campion (2025), two properties appeared to have incorrect street numbers in the will. The Registry required the probate summons to be amended to seek rectification. The applicants sought clarification about the scope of that requirement.
The Supreme Court clarified the issue and directed an amended summons. It did not decide whether rectification would ultimately succeed. Justice Kunc emphasised that requisitions should be dealt with promptly because delay can generate unnecessary costs.
The judgment also explained that a brief, courteous request for clarification can be appropriate where a requisition is genuinely unclear. If an applicant disagrees after clarification, the proper review procedure should be used. The lesson for executors is to resolve evidentiary and procedural questions promptly rather than allowing correspondence to drift.
What delays can mean for the estate
An incomplete application can postpone access to assets or transactions requiring the grant. Property expenses and other estate obligations may continue while the application is being corrected. There is no automatic fixed penalty or standard loss for a missing affidavit: the consequences depend on the estate and the problem involved.
The Supreme Court's provisional 2025 statistics record 30,785 uncontested filings, including probate, administration and reseal applications. These figures show the volume of Registry work, but do not measure how many delays were caused by executor affidavits. Processing times also change, so avoid promising beneficiaries a fixed completion date.
Five checks before filing
1. Confirm entitlement. Check the executor appointment and explain any executor who is not applying.
2. Reconcile the evidence. Match names, dates, assets, liabilities and beneficiary details across the documents.
3. Check execution. Arrange proper swearing or affirmation, signatures and identification of attachments.
4. Explain special circumstances. Address delay, missing originals or other matters requiring additional evidence.
5. Follow the application. Lodge required originals, monitor Registry correspondence and respond promptly to requisitions.
CM Lawyers can assist with probate applications, executor affidavits and responses to requisitions. Explore our wills and estates resources or contact our Marrickville team to discuss the documents your estate requires.
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