Do I always need probate in NSW?

Not always. It depends on what the deceased owned and who holds it. Solely owned real property and larger bank, share or super holdings often require probate, while small or simple estates may not, because each institution sets its own threshold. Assets held as joint tenants usually pass to the surviving owner by survivorship and sit outside the estate. Confirm with each institution and a solicitor.

What is the difference between probate and letters of administration?

Probate is granted when there is a valid will and an executor able to act; it confirms the will and authorises that executor. Letters of administration are granted when there is no will, or no executor able or willing to act, and appoint an administrator to do a similar job. Where there is no will, the estate passes under the intestacy rules in the Succession Act 2006 (NSW).

How long does probate take in NSW?

It varies. A straightforward, uncontested application may be granted in a matter of weeks once filed correctly, but volumes are high and complex estates take longer. By convention, the executor's year, a simple estate is usually expected to be administered within about twelve months. This is general guidance, not a guarantee.

Can an executor be held personally liable?

Yes. An executor owes duties of care and good faith and can be personally liable for loss caused by mistakes, such as paying out beneficiaries before debts are paid or while a claim is on foot. Following the notice of intended distribution process under the Probate and Administration Act 1898 (NSW) can provide protection in some circumstances. Because the stakes are real, many executors take legal advice.

When can an executor distribute the estate?

An executor should not rush distribution. Broadly, the section 92 protection arises only after proper notice (a period of not less than 30 days for claims) and at least six months from the date of death. Separately, eligible people generally have twelve months from death to bring a family provision claim under the Succession Act 2006 (NSW), so early distribution can be risky. Seek advice first.

What if there is no executor, or the executor will not act?

A named executor can renounce before dealing with the estate, and if an executor cannot or will not act the Supreme Court can appoint someone else, such as through letters of administration with the will annexed or by appointing the NSW Trustee and Guardian. If an executor is acting improperly, the Court can be asked to step in. A solicitor can advise on the right path.

Probate and executor duties in NSW

What probate is, when it is needed, and what an executor actually has to do, explained in plain language. General information only, not legal advice; please speak to a solicitor about your situation.

Reviewed: 29 June 2026 · General information, not legal advice

Important: this page is general information, not legal advice. Estate law is technical and every situation is different. Nothing here is a substitute for advice from a qualified NSW solicitor, and you should not act on this page alone. For free initial guidance contact LawAccess NSW, and for estate administration the NSW Trustee and Guardian. If you are an executor and unsure, get advice before making decisions about the estate.

When someone close to you dies, the legal side can feel overwhelming on top of the grief. This guide explains the basics of probate and what an executor does under New South Wales law. It reflects the law as at the review date above, but law and court practice can change.

What probate is

Probate is a formal grant made by the Supreme Court of New South Wales. The Court checks that the deceased left a valid will, confirms who the executor is, and gives that executor legal authority to deal with the estate. The executor can then collect assets, deal with banks and registries, and distribute what is left to the beneficiaries named in the will.

The rules sit mainly in the Probate and Administration Act 1898 (NSW), with procedure set by the Supreme Court Rules and the Uniform Civil Procedure Rules. Applications are made through the Supreme Court Probate Registry; since 2023 most uncontested applications are lodged through the NSW Online Registry.

When probate is, and is not, required

There is no single dollar figure in the legislation. Whether you need a grant usually depends on what the deceased held and who holds it.

Often required: where the deceased solely owned real property in NSW, or held larger sums with banks, share registries or super funds that insist on a grant before releasing assets.
Often not required for small or simple estates: institutions each set their own threshold below which they release funds on lesser proof (such as a death certificate and indemnity). There is no universal cut-off, so ask each one.
Passes outside the estate: assets owned as joint tenants (for example a jointly owned home or bank account) usually pass to the surviving owner by survivorship and are not part of the estate that probate covers. Super and life insurance with a valid binding nomination may also pass outside the will.

Letters of administration (no will, or no executor)

If a person dies without a valid will, or with a will but no executor able or willing to act, the Court can instead grant letters of administration, appointing an administrator to do broadly the same job as an executor.

Where there is no will, the estate is distributed under the rules of intestacy in the Succession Act 2006 (NSW), typically starting with a spouse or de facto partner and children. An order of priority, generally favouring close relatives, governs who may apply to be administrator. If no eligible person is able or willing, the NSW Trustee and Guardian may apply.

The executor's duties, step by step

An executor holds a position of trust. Broadly:

1. Locate the will and protect assets

Find the original will and confirm you are the named executor. Secure the deceased's property, valuables and documents, arrange any urgent insurance, and do not mix estate money with your own.

2. Advertise and apply for probate

Before filing, the executor generally must publish a notice of intended application for probate on the NSW Online Registry, then wait a set period (commonly at least 14 days) before lodging. The Court generally expects the application within about six months of the date of death, and a later application may need an explanation of the delay.

3. Identify, value and collect assets

List everything the deceased owned and owed, obtain date-of-death valuations where needed, and gather in the assets once you have the grant.

4. Pay debts and tax

Pay the deceased's valid debts, funeral and administration expenses, and any final tax matters before distributing. Distributing too early can leave the executor personally exposed if debts later surface.

5. Advertise intended distribution

Section 92 of the Probate and Administration Act 1898 (NSW) lets an executor publish a notice of intended distribution. Broadly, distribution can proceed where notice specifying a period (not less than 30 days) for claims has been given and at least six months have passed since the death. This can give protection from personal liability for claims the executor did not know about, under sections 92 and 93.

6. Distribute and keep accounts

Distribute strictly in line with the will (or the intestacy rules), and keep clear, accurate accounts of everything received, paid and distributed; beneficiaries are entitled to a proper accounting.

Personal liability and duty of care

An executor owes duties of care and good faith and can be personally liable for loss caused by getting it wrong, for example distributing before debts are paid or while a claim is on foot. This is why many executors engage a solicitor or the NSW Trustee and Guardian.

Timeframes and the "executor's year"

By a long-standing convention, the executor's year, beneficiaries generally should not expect distribution within the first twelve months, and a straightforward estate is usually administered within about a year. Complex estates take longer. Two timing points matter:

A person eligible to bring a family provision claim under the Succession Act 2006 (NSW) generally has twelve months from the date of death to apply, one reason executors are cautious about early distribution.
The section 92 protection above generally arises only after at least six months from death and proper notice; distributing earlier can leave an executor exposed.

If an executor cannot or will not act

An executor is not forced to take on the role. A named executor may renounce (decline) before dealing with the estate, or reserve their position. If an appointed executor cannot act, will not act, or has died, the Court can appoint someone else, for example by granting letters of administration with the will annexed, or by appointing the NSW Trustee and Guardian. If an executor is acting improperly, the Court can be asked to intervene.

How common is this? Some scale

Estate administration is far from rare. According to figures attributed to the Supreme Court of NSW and reported by the ABC, the Court had 29,936 uncontested probate matters in 2024. That volume helps explain why processing can take weeks to months, and why getting the application right matters.

A practical note for families

Much of an executor's stress comes from not finding documents, or not knowing what the person actually wanted. A clear, up-to-date will and well-organised records make the process far smoother. For the will and estate, see a solicitor or the NSW Trustee and Guardian.

Where Afterlife AI™ fits

There is a human side of legacy that paperwork cannot capture: who the person was, their voice and their values. Afterlife AI™ is not a will, not an executor, and not legal advice. It does not grant probate or administer an estate. It offers the personal side: a consent-based digital legacy that preserves a person, their voice and values, while they are alive. It is governed by Executor Lock™, an Afterlife AI™ feature that locks the consent settings a person chooses (a product feature name, different from a legal executor under estate law). Voice preservation is consent-based and free to create for everyone; the listening experience is the paid part, on the Legacy plan (currently $14.99 per month) or above. Afterlife AI™ is an Australian company and Australian-hosted. If you are dealing with a death now, prioritise the legal steps and proper advice first.

Frequently asked questions

The answers below are general information only, not legal advice. For your circumstances, consult a NSW solicitor.

Sources

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