Updated October 2026
CM Law’s Ultimate 50 List Making a Will Number 20 What is probate and how does it relate to my will
Understanding probate and your will
Probate is the Supreme Court of NSW’s formal recognition of a will and the executor’s authority to administer the estate. It matters because banks, share registries and other organisations may require that confirmation before releasing assets. However, not every death requires a probate application. Some assets pass directly to a surviving owner, and some smaller estates can be dealt with without a grant. The starting point is to identify what the deceased owned, how it was owned and what each asset holder requires.
What probate does
A will records who should receive your estate and usually names an executor. A grant of probate confirms the will and the executor’s authority. Collecting assets, paying liabilities and distributing inheritances are the subsequent work of administering the estate. Obtaining the grant does not itself complete those tasks.
If there is no valid will, the appropriate application may be for letters of administration. Where a valid will exists but no executor can act, letters of administration with the will annexed may be needed. These are different grants, rather than ordinary probate. Legal Aid NSW explains these distinctions.
When probate may not be needed
Property owned as joint tenants
With joint tenancy, the deceased owner’s interest generally passes to the surviving joint tenant by survivorship, outside the will. A Notice of Death records that change on the NSW land register by removing the deceased joint tenant. The dealing requires supporting evidence, including evidence of death. A lawyer can check the title and arrange the appropriate registration.
Marriage alone does not create this outcome. Married couples can own property as tenants in common, with separate shares. A deceased tenant in common’s share forms part of their estate; it does not automatically pass to the other owner. Sole ownership also generally requires a grant to deal with NSW real estate. The title search, rather than assumptions about the relationship, identifies the ownership structure.
Bank accounts and other assets
Joint bank accounts can often be dealt with through survivorship, subject to the account arrangements and any dispute about beneficial ownership. For smaller sole accounts, a bank may accept a death certificate, will and indemnity without probate. There is no single dollar threshold binding every institution. Ask each asset holder for its requirements before deciding whether to apply.
Superannuation death benefits and life insurance may pass directly to beneficiaries outside the estate. The fund rules, nominations, policy terms and recipient matter. If payment is to the estate, or the provider requires a grant, probate or administration may still be necessary. The Court’s probate guidance explains why an individual assessment is needed.
For example, someone who leaves only personal belongings and a modest bank balance may have an estate that can be administered without probate if the bank agrees to release the funds. Conversely, a surviving spouse might receive the home through survivorship but still need a grant to access a substantial investment held solely by the deceased. Check every asset before concluding that no application is necessary.
Christine on a client who did not need probate
“I had a client whose spouse had died, and she was able to receive everything through survivorship. For the property, we dealt with a Notice of Death rather than a probate application. It is a useful example of why I start by checking how the assets are held. Being married was part of her circumstances, but the ownership arrangements made the difference.”
The Notice of Death dealt with the land title. Banks and other institutions have their own procedures. This example should not be taken to mean that every surviving spouse can avoid probate, or that one form deals with every asset.
How to apply for probate in NSW
1 Gather the documents and identify the assets
Locate the original will, any codicils and the death certificate. Prepare details of the deceased’s assets, liabilities, executors and beneficiaries. Obtain title searches and account information. This work establishes whether a grant is needed and helps identify anything that requires separate advice, such as overseas assets.
2 Use the current online application process
Uncontested applications can be made online through the NSW Probate Service. For an ordinary online application, the notice of intention to apply is published automatically upon submission. There is a 14-day publication period; corrections can restart it. Some special applications follow different notice procedures. Follow the NSW Online Registry instructions.
3 File the originals and answer court questions
The original will and any codicils must still be filed with the Court, even when the application is online. The Court may issue requisitions asking for corrections or further evidence. Respond carefully. If applying more than six months after death, explain the delay in an affidavit; this does not automatically prevent a grant. Legal Aid’s application guide sets out the documents and steps.
4 Administer the estate after the grant
Collect the estate assets, address debts and tax obligations, keep accounts and distribute when legally appropriate. Beneficiaries should receive clear updates. Do not treat the grant as permission to ignore outstanding liabilities or known disputes. If the estate cannot pay its debts, obtain advice before paying creditors or beneficiaries.
Keep estate money separate from your own funds and retain receipts for expenses, asset sales and payments to beneficiaries. Good records make it easier to explain what has happened and resolve questions before they become disputes. Even where probate is unnecessary, estate assets must still be distributed according to the will or intestacy rules after debts are addressed. Legal Aid’s distribution guide explains the responsibilities that continue after the question of a grant has been resolved.
A real case about which will should receive probate
In Ryan v Dalton and the Estate of Ryan (2017), Francis Ryan’s three adult children challenged a will made in 2013. His earlier 2011 will divided the estate equally between them. The later document divided it equally between the children and his de facto partner.
The NSW Supreme Court examined the solicitor’s records, nursing-home notes and retrospective medical evidence about Mr Ryan’s testamentary capacity. It was not satisfied that the executor had proved the 2013 document was made with the required capacity. The Court granted probate of the earlier 2011 will.
The practical lesson is that the latest signed document does not necessarily settle which will is legally effective. Where there are competing wills or concerns about capacity, obtain advice before distributing assets. A careful record of instructions and appropriate capacity enquiries when preparing a will can help address later uncertainty.
Costs delays and tax obligations
A straightforward application and a contested probate case involve different work and costs. Ask for an estimate separating the grant application from administration, property transfers, tax advice and any litigation. Missing documents, unresolved ownership questions and challenges to a will can all delay completion. The Court publishes current processing information, which is more useful than assuming every estate takes the same number of months.
Australia has no inheritance tax, but that does not make estate administration tax free. A final individual tax return and separate estate trust returns may be required, and income or capital gains tax can arise. The ATO’s deceased estate guidance explains estate return obligations. Get advice before selling or distributing assets where the tax position is unclear.
The Supreme Court’s 2024 Annual Review, pages 35 and 37, records 30,801 uncontested grant applications filed and 29,936 disposals in 2024. These figures include probate, letters of administration and reseals of grants made elsewhere. They do not establish what percentage of deaths require probate, the likelihood of a successful challenge or an average legal bill.
Check your arrangements before they are needed
Keep your will current, tell your executor where the original is stored, and review property ownership alongside your estate plan. A will remains important even if some assets currently pass by survivorship: ownership can change, or the other joint owner may die first. CM Lawyers can review your will and probate requirements, including whether a Notice of Death or a court application is appropriate.
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