Probate and Letters of Administration

Obtaining the grant, administering the estate and dealing with the property, for NSW estates and interstate estates with property in NSW.

  • Probate where there is a will
  • Letters of administration where there is no will, or no executor can act
  • Reseals of interstate and overseas grants for NSW property
  • Property transfer and sale handled in-house once the grant issues
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Probate and Letters of Administration for Estates With Property

When someone dies owning property, the grant is usually the first step before anything can be sold or transferred.

We act for executors and families of NSW estates where the estate includes real property, and for interstate executors and their lawyers who need a grant resealed so NSW property can be dealt with. Because we also handle the transmission, transfer to beneficiaries and sale of the property, the estate deals with one firm from the application to settlement.

We do not act in contested estates, will disputes or family provision claims. If a dispute arises, we will tell you and you will need separate representation for that part.

This page is general information and is not legal advice about your circumstances.
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What we do

3 Types of Grant

Which grant the estate needs depends on whether there is a will and where the deceased lived.

Probate

Granted where there is a valid will that names an executor who can act. It confirms the will and the executor's authority to deal with the estate.

Letters of administration

Granted where there is no valid will, or no executor named in the will can act. It appoints an administrator with the same authority as an executor.

Reseal of an interstate grant

Where the grant was made in another state or country, the Supreme Court of NSW reseals it so the NSW property can be transferred or sold.

Probate

Applying for Probate

Probate is the Supreme Court of NSW confirming that a will is valid and that the executor named in it has authority to deal with the estate.

Instructions: we take instructions on the deceased's assets and debts and how each asset was held.

Documents: we obtain the original will, the death certificate and the executor's details.

Application: we prepare and file the application online with the Supreme Court, including the executor's affidavit and the inventory of property. The notice of intended application is published automatically when the application is filed.

Requisitions: we respond to any requisitions from the Court and follow the application through to the grant.

Timing: in our experience a straightforward probate application is granted in about 4 weeks, or 6 to 8 weeks in busy periods. The application should be made within 6 months of the death, or the delay must be explained to the Court.

Letters of administration

Applying for Letters of Administration

Letters of administration are granted where there is no valid will, where the will does not name an executor, or where the executor has died, cannot act or does not want to. The grant appoints an administrator, who then has the same authority as an executor.

Without a will: the estate passes under the NSW intestacy rules, in a fixed order starting with a spouse or de facto partner, then children. The Court usually appoints the person with the largest entitlement, and others with an equal or better right may need to consent.

With a will but no executor able to act: the application is for letters of administration with the will annexed. The will still decides who inherits, but the Court appoints an administrator to carry it out.

Why it takes longer: without a will the Court needs evidence of who is entitled, and proving a negative is hard. For example, if you are the only child of a parent who has died, the Court will want to be satisfied that there is no spouse or de facto partner and no other children. That usually means affidavits from family members and others who knew the person. Letters of administration can take a year or more, and every gap in the evidence adds time.

What we do: the same steps as probate, plus identifying who is entitled, preparing the supporting affidavits and obtaining any consents needed from other family members.

Reseals

Reseals of Interstate and Overseas Grants

A grant made in another state only gives authority in that state. If the deceased owned property in NSW, NSW Land Registry Services will not register a transmission or transfer on an interstate grant. The grant must first be resealed by the Supreme Court of NSW.

How it works: a reseal is usually simpler than a new application. The executor or administrator keeps the original grant, and the NSW Court adds its seal so the grant has effect in NSW. Grants from other Australian states and territories, New Zealand, the United Kingdom and some Commonwealth countries can be resealed. Grants from other countries usually need a new NSW application.

What we do: we obtain a certified copy of the original grant from the court that issued it, prepare and file the reseal application with an inventory of the NSW assets, and once it is resealed, register the transmission of the NSW property and transfer or sell it as the will directs.

Acting as NSW agent: we often act for interstate law firms and executors, who keep running the rest of the estate in their own state. The Court's filing fee and our grant fee are based on the value of the NSW assets only.

Before you start

Do You Need a Grant, and What to Bring

Not every estate needs a grant. Where one is needed, these are the documents we ask for.

Joint tenants: property owned as joint tenants passes to the surviving owner without probate, through a simple application to NSW Land Registry Services. See Deceased Estate Property Transfer.

Sole owner or tenants in common: property in the deceased's sole name, or a tenants in common share, almost always needs a grant before it can be sold or transferred.

Small estates: banks and share registries set their own limits for releasing small amounts without a grant. If the only assets are below those limits, a grant may not be needed.

What to bring: the original will and any codicils (a copy is not enough), the death certificate, the executor's or applicant's full name, address and occupation, a list of assets with approximate values at the date of death, and the debts, including mortgages, loans and credit cards. For a reseal, a copy of the interstate grant and the name of the court that issued it.

What it costs

Grant Fees on the Regulated Scale

Our fee for obtaining a grant of probate or letters of administration, or resealing an interstate grant, follows the costs scale set by NSW regulation for this work. It is set by the value of the assets disclosed in the inventory, so you know it once the assets are known.

Grant for an estate of $500,000

Probate, letters of administration or a reseal, where the assets disclosed in NSW total $500,000.
$3,234.50 + GST

Grant for an estate of $1,000,000

The same work, where the assets disclosed total $1,000,000.
$5,469.50 + GST

Grant for an estate of $1,500,000

The same work, where the assets disclosed total $1,500,000.
$6,300 + GST

Administering the estate

After the grant: collecting the assets, paying the debts and expenses, and distributing to the beneficiaries. The cost depends on how much administration the estate needs, and we give you an estimate once we have reviewed the assets.
$600 + GST per hour

Court filing fee and disbursements

The Supreme Court filing fee is based on the value of the estate. It is passed on at cost, with the notice fee, certified copies and searches.
At cost

The property

A transmission application is $600 + GST and a transfer to a beneficiary is $800 + GST. A sale is priced as a residential or commercial sale.
From $600 + GST

Our fees for obtaining the grant and administering the estate are paid by the estate, usually before the final distribution. See Deceased Estate Property Transfer and our Pricing page for the property fees.

How it works

From Instructions to the Property

01

Instructions

Tell us about the deceased, the will and the assets. We confirm the fees in a costs agreement.

02

Documents

We gather the will, the death certificate and the asset details, and prepare the application.

03

Filing

The application is filed online with the Supreme Court and the notice is published.

04

Grant

The Court issues the grant, or reseals the interstate grant.

05

Administration and property

We collect the assets, deal with the property, pay the debts and distribute the estate.

What We Do Not Do

Will disputes

Challenges to whether a will is valid, such as claims the deceased lacked capacity or was pressured into it.

Caveats and executor disputes

Caveats lodged to stop a grant, and disputes between executors, administrators or beneficiaries.

Family provision claims

Claims by family members for a larger share of the estate, whether you are making or defending one.

If a dispute arises during the administration, we will tell you, and you will need separate representation for that part.

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Explore:

A grant is usually followed by the transfer or sale of the property.

Related: Estate Planning · Deceased Estate Property Transfer · Title and Ownership Changes · Residential Conveyancing · Pricing

Probate and Letters of Administration FAQs

What is the difference between probate and letters of administration?
Probate is granted where there is a valid will that names an executor who can act. Letters of administration are granted where there is no will, or no executor can act, and appoint an administrator instead. Both give the same authority to collect the assets, sell or transfer property and distribute the estate.
How long do letters of administration take compared with probate?
In our experience, a straightforward probate application is granted in about 4 weeks, or 6 to 8 weeks in busy periods. Letters of administration can take a year or more. Without a will, the Court needs evidence of who is entitled, and proving a negative is hard. For example, if you are the only child of a parent who has died, the Court will want to be satisfied that there is no spouse or de facto partner and no other children. That usually means affidavits from family members and others who knew the person, and every gap in the evidence adds time. Meanwhile the estate cannot be sold, transferred or distributed.
How long do I have to apply for probate?
The application should be filed within 6 months of the death. A later application is still possible, but the delay must be explained to the Court in the executor's affidavit.
What happens if someone dies without a will in NSW?
The intestacy rules decide who inherits, in a fixed order. A spouse or de facto partner comes first. If all the children are also the partner's children, the partner takes everything. If there is a child from another relationship, the partner receives the personal effects, a fixed sum that is indexed each year and half of the rest, and all the children share the other half. With no partner, the children share equally. If there are none, the estate goes to the parents, then brothers and sisters, then grandparents, then aunts and uncles, then first cousins, and only if there is none of them, to the State. The person with the largest entitlement usually applies for letters of administration.
Can the property be sold before probate is granted?
Contracts can sometimes be exchanged before the grant, with settlement after it, but the executor cannot complete a sale or transfer of property in the deceased's sole name until the grant issues. Agents and buyers should be told a grant is pending, and the contract should allow for it.
Who pays the legal fees?
The estate pays the fees for obtaining the grant and administering the estate. The executor does not pay personally, although some disbursements, such as the Court filing fee, may need to be paid before the estate's funds are available.
The deceased lived in another state but owned property in NSW. What do we need?
A grant from the deceased's home state must be resealed by the Supreme Court of NSW before the NSW property can be transferred or sold. We can act as NSW agent for the interstate executor or their lawyer, reseal the grant and deal with the property.
What does an executor have to do?
Find the will, arrange the funeral if needed, apply for the grant, collect the assets, pay the debts and taxes, including any final tax returns, and distribute the estate under the will. An executor must act in the interests of the beneficiaries and keep proper records, and can be personally liable if they distribute too early or pay the wrong people.
What if someone disputes who should be executor or administrator?
Disputes about who should act go to the Supreme Court of NSW, not the NSW Civil and Administrative Tribunal. Before a grant, a person can lodge a caveat, which stops the grant. It generally lapses after 6 months unless the Court extends it. Where there is a will, the executor it names is usually appointed unless the will is shown to be invalid, and after the grant the Court removes an executor only for a serious reason, such as misconduct, a real conflict of interest or a breakdown that stops the estate being administered. Where there is no will, the Court usually appoints the person with the largest entitlement, but it can choose someone else or appoint joint administrators. A contested application can add many months and significant costs, often paid from the estate. We do not act in these disputes.
What is a notice of intended distribution?
Before distributing the estate, an executor can publish a notice inviting claims against the estate. Once the notice period has passed, the executor is protected if they distribute without knowing of a claim. It does not stop a family provision claim. An executor who distributes within 6 months of the death, or after learning of a claim, can be personally liable if a claim is made, so executors wait at least 6 months and often until the 12-month claim period has passed.
Can someone make a claim on the estate?
Yes. In NSW, certain people can apply to the Supreme Court for a larger share of the estate if they were not left adequate provision, whatever the will says, and even where there is no will. They include a spouse or de facto partner, any child, a former spouse, and some dependants, grandchildren and people in a close personal relationship with the deceased, such as a live-in carer. A former spouse and most of the others must also show reasons why the Court should hear their claim. A claim must usually be made within 12 months of the death. We do not act in these claims, on either side.
What is notional estate?
In NSW, the Supreme Court can treat certain property that did not pass under the will as part of the estate, so it can be used to pay a successful family provision claim. Examples are property held as joint tenants that passed to the survivor, super and life insurance paid directly to a beneficiary, and some gifts made in the years before death. The Court only does this if it makes a family provision order and the actual estate is not enough to pay it, and it weighs the fairness to the person now holding the property.
What is a deed of family arrangement?
A deed of family arrangement is an agreement between the beneficiaries to divide the estate differently from the will or the intestacy rules. Every beneficiary whose share changes must agree, and must be an adult with capacity, or the Court must approve it. It can cost money: where a beneficiary ends up with more than their original entitlement, NSW stamp duty can apply to the extra, and capital gains tax concessions may be lost. Where the will gives the executor power to appropriate assets, the executor can often allocate particular assets to beneficiaries as part of their share, with only nominal duty and no deed.
What if the deceased had Family Court property orders that were not carried out?
The orders do not lapse on death. They can be enforced by and against the estate, so the executor must carry them out, for example by selling a home and dividing the proceeds as the orders require. If property proceedings had started but no orders were made, the Family Court can let them continue against the estate. Check how the property was held: if the deceased and their former spouse still owned it as joint tenants, the deceased's share may have passed to the former spouse by survivorship.
Is there inheritance tax in Australia?
No. Australia has no inheritance or death tax. Death itself does not trigger capital gains tax, and transferring a property from the estate to a beneficiary under the will does not trigger it either. Tax becomes relevant when the property is later sold, and in some cases while it is held.
Is capital gains tax payable if the deceased's home is sold?
Generally not, if the property was the deceased's main residence just before they died, was not being used to earn income at the time, and settlement happens within 2 years of the date of death. Exchanging contracts within 2 years is not enough; settlement must be completed. It does not matter whether the executor sells it or a beneficiary sells it after the transfer, or how it is used during those 2 years. The ATO can allow more time in some circumstances, such as where the will is challenged or the estate is complex.
What if the home is kept for longer than 2 years?
The full exemption continues if, from the date of death until the sale, the home was the main residence of the deceased's spouse, a person given a right to live there under the will, or the beneficiary who sells it. If none of those apply, capital gains tax is payable on part of the gain. The gain is worked out from the property's market value at the date of death, not what the deceased paid, which usually reduces the tax significantly.
What if the deceased had moved into aged care?
A home can still count as the deceased's main residence after they moved out, for example into aged care, provided they did not treat another property as their main residence. In some cases this applies even if the home was rented out after they moved. The rules are technical, so get tax advice before selling or renting the property.
What if the property was an investment property?
There is no exemption. The beneficiary takes over the deceased's original cost base, so when the property is eventually sold, capital gains tax is payable on the whole gain since the deceased bought it. The 50% discount is usually available, because the deceased's period of ownership counts towards the 12 months. If the estate sells the property, the estate pays the tax.
What if the deceased bought the property before 20 September 1985?
Property bought before 20 September 1985 is outside the capital gains tax system for the deceased. The beneficiary is treated as acquiring it at its market value at the date of death, so only growth after death is taxed. If it is sold within 2 years of death it is fully exempt, whether it was a home or an investment. A valuation at the date of death is essential.
Does it matter if the deceased was a foreign resident?
Yes. If the deceased was a foreign resident for tax purposes when they died, the main residence exemption is generally not available on the sale of their home, even within 2 years.
What happens with jointly owned property?
Property held as joint tenants passes to the surviving owner automatically, without probate and without transfer duty. For capital gains tax, the survivor is treated as inheriting the deceased's share, so the same rules apply to that share, including the 2-year rule for the deceased's home.
Is stamp duty payable when a beneficiary inherits a property?
Only $50, if the property is transferred in accordance with the will or the intestacy rules. The same applies where the executor transfers a property to a beneficiary towards their share of the estate, or a beneficiary takes the property with the executor's consent. A transfer made under a family provision order is also treated as being in accordance with the will.
What if one beneficiary wants to buy out the others?
Full transfer duty is payable on the share being bought. For example, if 2 children inherit equal shares in a home and one buys the other's half, the half they inherit attracts only nominal duty, but the half they buy attracts duty at the standard rate. Changing the will's gifts by a deed of family arrangement does not qualify for the $50 concession, although reduced duty can apply in some cases. Get advice before agreeing how to divide the estate.
Is land tax payable on the deceased's home?
Not for 2 years after the date of death, as long as the property is not earning income. After 2 years, the exemption can continue if the property is lived in by a beneficiary, or by someone given a right to live there under the will, as their home. Otherwise land tax becomes payable until the property is sold or transferred.
Is land tax payable on an investment property in an estate?
Yes. Land tax continues to be assessed while the property is held by the estate. Once it is transferred to a beneficiary, it is added to the beneficiary's own NSW landholdings, which may push them over the threshold or into a higher rate. Beneficiaries who already own investment property should factor this in when deciding whether to keep or sell.
Do you handle disputes over a will?
No. We act in uncontested estates only. If someone lodges a caveat, challenges the will or brings a family provision claim, you will need separate representation for that dispute.

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