New South Wales

Probate is the Supreme Court of New South Wales's confirmation that a will is valid and that the executor named in it may act. Banks, share registries and the land titles office generally want to see the grant before they will release or transfer anything.

You may not need it

Not every estate does. Assets owned as joint tenants pass to the surviving owner automatically, and superannuation and life insurance with a valid nomination are paid directly. Many institutions will release smaller balances on a form and an indemnity instead. Ring each one and ask what they require and what their threshold is — the answer is set by their own policy, not by law, and it differs between banks in the same street.

Applying

You will normally need to publish a notice of intention to apply and then wait — at least fourteen days — before filing. The application itself goes to the Supreme Court with the original will, an affidavit from the executor, a list of the assets and liabilities, and the death certificate from Births, Deaths and Marriages.

The filing fee depends on the size of the estate. Check the court's current schedule rather than a figure quoted anywhere else; they change.

Superannuation is usually not part of the estate

This catches families out more than anything else here. Superannuation is held in trust by the fund, so it does not automatically form part of the estate and the will does not decide who gets it. The trustee decides — limited to dependants or the legal personal representative — unless the member made a binding death benefit nomination, which is a legally enforceable direction.

So an estate can be far smaller than the family expects, and the super can go somewhere the will never contemplated. Check with each fund what nomination is on file. It is also why setting one up is worth doing while you can.

Before you distribute anything

An eligible person can apply for further provision from the estate. In New South Wales the limit is 12 months from the date of death.

That starting point matters: in some states the clock runs from the death, in others from the grant, and assuming the wrong one is how an executor distributes inside the window. Money paid out early can leave you personally exposed.

Property in another state

A grant from one state does not automatically reach assets in another. You may need it resealed in the second jurisdiction, or a fresh application there.

A will made in New South Wales must be in writing, signed by the person making it, and witnessed by two people who are present at the same time. A beneficiary should not witness it — in most circumstances doing so costs them their gift.

The court can sometimes accept a document that does not meet those requirements if it is satisfied it was intended as a will, but that is an expensive application and an uncertain one. It is not a plan.

Superannuation is usually not part of the estate

This catches families out more than anything else here. Superannuation is held in trust by the fund, so it does not automatically form part of the estate and the will does not decide who gets it. The trustee decides — limited to dependants or the legal personal representative — unless the member made a binding death benefit nomination, which is a legally enforceable direction.

So an estate can be far smaller than the family expects, and the super can go somewhere the will never contemplated. Check with each fund what nomination is on file. It is also why setting one up is worth doing while you can.

What a will does not cover

Along with superannuation: anything owned as joint tenants, and life insurance paid to a named beneficiary. It is worth listing what is actually in the estate before assuming the will divides everything.

Keeping it findable

Only the signed original counts. Tell the executor where it is. A safe deposit box sounds responsible and creates a circular problem — the bank wants proof of authority, and the proof is inside the box.

An executor in Australia is always entitled to be reimbursed for what the job actually cost them. Being paid for their time is a separate question, and the answer is not automatic.

In New South Wales: The Court may allow commission for the executor's “pains and trouble”, and publishes guideline bands rather than a fixed rate — different percentages for assets transferred as they are, for capital realised, and for income collected.

In practice there are two routes. Either every beneficiary agrees to the amount in writing, or the executor applies to the court and it is assessed. A professional executor engaged under the will — a solicitor or a trustee company — charges under its own scale instead, and that scale should be looked at before they are appointed rather than after.

What actually decides it

Records. Commission is assessed on the work done, so an executor who kept a dated log of what they did and what it took is in a very different position from one working out of memory two years later.

Expenses properly incurred in administering the estate are reimbursable from it. This is separate from commission — you do not need anybody's permission to be repaid what you spent, only evidence that you spent it.

Usually reimbursable

• Funeral costs, reasonable for the size of the estate
• The court filing fee and the cost of advertising the intended application
• Certified copies of the death certificate
• Solicitor, accountant and valuer fees
• Insurance, rates, utilities and security on estate property
• Travel genuinely required to administer the estate
• Postage, searches and registry fees

Usually not

• Your own time — that is commission, and it needs consent or an order
• The cost of a dispute you brought and lost
• Anything that mainly benefited you rather than the estate

Keep the estate's money separate

Open an estate bank account and run everything through it. Reimburse yourself by transfer rather than in cash, so the record shows what each payment was for. If a beneficiary later asks where the money went, the account statement is the answer — and mixing estate money with your own makes an honest administration look like something else.

You do not have to do this yourself. In New South Wales the usual alternatives are NSW Trustee & Guardian, a private trustee company, or a solicitor appointed as executor under the will.

Worth considering when

• The estate is complex — a business, property in several states, assets overseas
• The family is in conflict, or a claim against the estate looks likely
• The named executor is elderly, unwell, or lives far away
• Nobody suitable is willing to take it on

What it costs

A professional charges under a published scale, usually a percentage of the estate plus fees for particular work. Read the scale before appointing anyone, not afterwards: it is easier to choose differently than to change an appointment later, and the difference over a whole administration can be substantial.

A middle path

A family executor can engage a solicitor to do the parts that need one and keep the rest. That is often cheaper than handing the whole administration over, and it keeps the decisions with somebody who knew the person.