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Probate is the legal process that confirms the validity of a deceased person’s will and gives the nominated executor the legal authority to deal with the deceased person’s estate. In Fairfield, which is part of New South Wales, probate matters are dealt with under NSW law and most formal probate applications are processed by the Supreme Court of New South Wales through its Probate Registry. Where there is no valid will, a court may grant letters of administration to appoint an administrator to manage the estate.
Probate is needed to access and transfer many types of assets - for example, real property, shares, certain bank accounts and other assets that require the court's authorisation to change legal ownership. The executor or administrator has legal duties to collect assets, pay debts and distribute the estate to beneficiaries in accordance with the will or intestacy rules.
Many people can manage straightforward estates with some guidance, but a lawyer is important when the case is not simple. Common situations where people need legal help include:
- The estate is complex - multiple properties, business interests, trusts, or overseas assets.
- There is no will, or the will is unclear or missing.
- There are potential claims against the estate - for example family provision claims by dependants or disputed beneficiary entitlements.
- The estate owes significant debts, or there are contested creditor claims.
- The executor needs to apply for a grant of probate and is unsure how to prepare the application and supporting affidavits.
- There are disputes between executors or beneficiaries that could lead to court proceedings.
- Tax, stamp duty or land transfer issues need specialist handling.
A lawyer who specialises in probate and estate administration can advise on legal obligations, prepare and lodge court documents, manage disputes, and reduce the risk of personal liability for the executor.
Key legal features and sources relevant to probate in Fairfield and New South Wales include:
- Wills and formal validity - Wills must meet formal requirements under NSW law to be valid. If the will does not comply with formal requirements, it may be challenged.
- Court process - Applications for a grant of probate or letters of administration are made to the Supreme Court of New South Wales through its Probate Registry. There are standard forms, affidavits and supporting documents required for a successful application.
- Succession and claims - The Succession Act 2006 (NSW) provides the framework for family provision claims - that is, challenges by people who claim they have not been adequately provided for in a will or under intestacy rules. Time limits apply to these claims.
- Estate administration duties - Executors and administrators must identify and preserve estate assets, pay valid debts, file necessary tax returns, and distribute assets in accordance with the will or intestacy law. Executors can be personally liable if they do not perform these duties properly.
- Tax and stamp duty - Estates may have tax obligations with the Australian Taxation Office, and transfers of land or other assets may involve dealings with Revenue NSW and the NSW Land Registry Services. Legal and financial advice is often required to finalise these matters correctly.
- Public trustee and guardianship - NSW Trustee & Guardian can act as administrator in some situations, provide estate services, and hold unclaimed estates. Local services and registries can also provide guidance and assistance.
Probate is the court's formal recognition that a will is valid and that the executor has authority to administer the estate. It is typically required to deal with assets that cannot be transferred without a court grant - for example, some bank accounts, property held in the deceased's sole name, or investments. If the estate is small or assets are held jointly, probate may not always be needed.
To apply you usually need the original will, a death certificate, affidavits from the executor and witnesses about the will and the deceased's assets, and the completed court forms for a grant of probate. Applications are made to the Supreme Court of New South Wales - Probate Registry. In Western Sydney many people deal with the Parramatta registry for local filings. A lawyer can prepare and lodge the application on your behalf.
Timeframes vary with complexity. A straightforward uncontested application can take a number of weeks once the application is lodged, but more complex estates or matters that require additional evidence can take several months. If a will is contested, or if there are disputes about assets or debts, the process can take much longer.
If there is no valid will, the estate is distributed under the intestacy rules in NSW. A close family member can apply for letters of administration to be appointed as administrator. The distribution then follows statutory rules which may not match what the deceased would have wanted, which is why making a will is important.
Yes. Under the Succession Act 2006 (NSW) eligible people - such as a spouse, de facto partner, child or someone who was financially dependent on the deceased - can seek a family provision order if they believe they were not adequately provided for. These applications must generally be made within a prescribed time after the grant of probate or administration. A lawyer can advise on eligibility, time limits and prospects of success.
An executor must locate and protect assets, value the estate, pay debts and taxes, prepare and lodge any required tax returns, obtain a grant of probate if needed, and distribute the estate according to the will. Executors should keep clear records and may need legal or accounting help to properly discharge their duties. Executors who act improperly or negligently can be personally liable.
Costs vary. The estate will usually pay court filing fees, legal fees if you engage a solicitor, valuation fees, and any professional fees for accountants or agents. Some lawyers charge fixed fees for straightforward probate work, while others charge hourly rates. Executors may be entitled to remuneration only if the will authorises it, the beneficiaries agree, or the court orders it.
Debts must be identified and paid from the estate before distribution to beneficiaries. If the estate is insolvent the executor must follow insolvency rules and may need specialist advice. Business interests can complicate valuation and transfer - business agreements, partnerships and company directorships often require careful handling and professional advice.
Some assets pass automatically outside of the estate - for example, property held in joint names with right of survivorship, and some accounts with nominated beneficiaries. However, institutions have different procedures and thresholds for releasing funds without probate. Banks and other institutions may require an executor's affidavit, proof of identity and documentation even when probate is not strictly necessary.
Start by searching the deceased's personal papers, safe, lawyer's office and bank safe deposit boxes. Some people lodge wills with the Supreme Court or with a solicitor for safekeeping. NSW Trustee & Guardian and certain private will registries may hold records. If you cannot find a will and suspect one exists, a lawyer can help conduct searches and advise on likely next steps.
Below are organisations and bodies that provide information, support or services related to probate and estate matters in New South Wales. Contacting the appropriate body or checking their publications can provide up-to-date procedural guidance and forms.
- Supreme Court of New South Wales - Probate Registry
- NSW Trustee & Guardian
- Revenue NSW
- NSW Land Registry Services
- Australian Taxation Office
- Law Society of New South Wales - solicitor referral and guidance on choosing a lawyer
- Legal Aid NSW and local community legal centres - for low-cost or free advice in eligible matters
- Community legal centres and family dispute resolution services - for mediation and dispute assistance
If you need legal assistance with probate in Fairfield, consider the following practical steps:
- Obtain a certified copy of the death certificate and locate the original will if one exists.
- Make a list of known assets and liabilities - bank accounts, property, superannuation, business interests, debts and ongoing obligations.
- Notify close family and potential beneficiaries so they are aware of the administration process.
- Contact institutions that hold significant assets - banks, superannuation funds, land titles and share registries - to learn their requirements for release or transfer.
- If the estate appears straightforward and you are confident, ask about fixed-fee probate services from law firms. If the estate is complex or there is any dispute, seek a solicitor experienced in NSW probate and succession law for an initial consultation.
- Keep careful records of all actions, correspondence and financial transactions related to the estate - this protects the executor and helps with final accounting to beneficiaries.
- If you are concerned about potential family provision claims or other challenges, seek legal advice early. Time limits can be strict and early advice improves your options.
Remember that this guide provides general information and does not replace personalised legal advice. For decisions that could affect your legal rights or personal liability - such as applying for a grant of probate, dealing with contested wills or administering a complex estate - consult a qualified solicitor with experience in NSW probate and succession matters.
