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Probate Sydney and Letters of Administration

When should Probate be applied for?

The Probate Rules require an application for Probate Sydney to be made within six (6) months of the testator’s death. If the application is not made within that period an explanation of the reasons for delay will have to be given in the form of an Affidavit, either a separate Affidavit or included in the Affidavit of the Executor.

It depends on the nature of the assets. If the estate is small and the assets comprise say a motor vehicle, furniture and personal effects and a small bank, credit union or building society account, these can usually be dealt with – in the case of a will – by production to the bank or financial institution of the will, a death certificate, evidence of the executor’s identity, a completed withdrawal form and a completed indemnity in the form required by the bank or institution. In this case, the executor is personally liable for the payment of the funeral expenses and debts of the deceased, up to the value of the estate, and is personally liable to the beneficiaries for payment of their entitlement.

Where there is no will, in the above circumstances, subject to production of the death certificate, a completed withdrawal form and a completed indemnity as above, and evidence of the identity of the next of kin, payment may be made to the next of kin who will then be liable for payment and distribution as above to the persons entitled.

One disadvantage to proceeding without a grant of probate or letters of administration is that the person dealing with assets is not able to obtain protection from liability for claims through the publication of statutory notices. An option to consider is to refer a small estate to the New South Wales Trustee and Guardian who has additional powers in dealing with small estates including the filing of an election to administer the estate which provides all the protections of a grant of probate or administration.

The Probate Rules require an application for Probate Sydney to be made within six (6) months of the testator’s death. If the application is not made within that period an explanation of the reasons for delay will have to be given in the form of an Affidavit, either a separate Affidavit or included in the Affidavit of the Executor.


The Adoption Act 2000 provides (s.95) that an adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to them; they are regarded in law as the parents of the adopted child, who is regarded in law as the child of the adoptive parents and as having ceased, on the making of the adoption order, to be the child of the birth parents. The intestacy provisions of the Succession Act 2006 provide that an adopted child is regarded as a child of the adoptive parent and for the purpose of distribution and the child’s biological relationships are to be ignored.

 Administration of Estate

No, similarly if the solicitor is a co-executor with another person. Disclosure of the basis and estimated amount of costs will need to be disclosed to the beneficiaries affected, usually the residuary beneficiaries.

Under s. 85(1AA) of the Probate and Administration Act 1898, accounts must be verified and filed or verified, filed and passed where the executor or administrator is:

(a) a creditor of the estate of the deceased,
(b) the guardian of a minor who is a beneficiary of the estate of the deceased,
(c) the executor or administrator of the estate where the whole, or a part which, in the opinion of the Court, is a substantial part, of the estate passes to one or more charities or public benevolent institutions,
(d) a person, not being a beneficiary, or, in the opinion of the Court, a substantial beneficiary, of the estate, selected at random by the Court, or
(e) a person otherwise required to do so by the Court.

Further, an executor or administrator may wish to file accounts, for example, in order to apply for commission.

As soon as practicable once the executor has made provision for the payment of all debts and liabilities of the deceased and the estate. As a general rule, if not paid within 12 months after the death of the deceased, the legacies bear interest from that time at 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.

Not necessarily; if the monies are going to be received from the realisation of assets and paid out within a short period a few months only-they can be paid to the credit of the estate in a solicitor’s trust account. However, if there is any significant delay in the investment of monies not required to be distributed, those monies should be invested prudently by the executor as provided in section 14A of the Trustee Act 1925.

The costs of the legal work of and incidental to obtaining the grant of Probate or Letters of Administration, up to the delivery of the grant by the court, are regulated as to the maximum amount chargeable. Costs in the administration of estates are deregulated. Practitioners must disclose to their clients, before commencing the retainer, their fees, including GST, for work in estates whether costs are regulated or deregulated. However, note that the disclosure requirements do not apply where the total of the legal costs, excluding disbursements, are not likely to exceed $750 or any amount prescribed by the regulations, whichever is higher.

The quantum of payment of commission can be agreed to by all of the beneficiaries if they are sui juris (have legal capacity), otherwise application should be made to the Court for an order for payment of commission at the time of filing and passing the estate accounts.

The amount which may be allowed to the executor seeking commission will depend on the degree for which he or she has been responsible for the discharge of the office of the executor. The commission for private executors will be based on their “pains and trouble”, and will be such as is “just and reasonable”, having regard to their involvement in the administration. The normal range is between 1 and 1.5 percent of the gross value of corpus and about 2 percent of income. Excessive payments of commission or costs are liable to be set aside under s.86A of the Probate and Administration Act 1898.

There is a decision of the Supreme Court in Buckley and Others v Permanent Trustee Co Ltd (1990) 21 NSWLR 112 in which it was held that a trustee company may be liable to a reduction in its normal rate of commission if the co-executor had participated in discharging the executorial duties.

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Wills & Executors

Probate, Letters of Administration, Beneficiaries & Administration of Estate

Power of Attorney

Please telephone Antony Mastrogiannis should you wish to discuss the above, have further questions or to make an appointment.

For a limited time we are offering 10% discount for Wills and Probate Sydney enquiries for past and present clients.


for more information on probate, please click on the following link: What is probate? | NSW Online Registry

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