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The Probate Process in NSW

The Probate Process in NSW

Navigate the Probate Process in NSW

Electronic filing as of 1 August 2023

Up until 1 August 2023, the probate process in NSW involved manually drafting the necessary forms for an application for probate using Word documents. The completed and original signed and attested forms and original Will were sent by registered post to the Probate Registry at the Supreme Court of NSW.

From 1 August 2023, applications for probate, letters of administration or reseals must be submitted electronically and filed online.

Summary of the process

The process is started by first registering on the NSW online registry which requires the applicant(s) to confirm IDs using the 100-point system. The applicant(s) may then complete the online form, which includes uploading a scanned copy of the will and death certificate.

For probate applications, the documents include, but are not limited to:
  • Summons for Probate
  • Affidavit of Executor
  • Inventory of Assets and Liabilities
The will should be carefully examined to be sure that it is:
  1. Dated, and
  2. Has a correct attestation clause, and
  3. Is signed by the testator, and
  4. Is signed by 2 independent witnesses who are not beneficiaries or executors.
Probate Process in NSW

Variations to the Affidavit of executor are needed where:

  1. There is more than one (1) executor and the other executor(s) is not applying, or
  2. An executor has died, or
  3. All executors have died and there are substitute executors named in the will, or
  4. There are no living executors who are prepared to apply, or
  5. The name of the testator is not identical to the name in the will, or
  6. The name of the testator is not identical to the name in the death certificate.
  7. Variations are dealt with by including a separate affidavit that specifically identifies and addresses the issues.

Signing and filing instructions

  1. The documents need to be signed before a lawyer or justice of the peace who must also sign at the same time in the same room using the same pen.
  2. The original will must be signed by both the proving executor(s) and the witness.
  3. The original death certificate must also be signed by both the proving executor(s) and the witness.
  4. The signed Affidavit and Inventor of Property are then scanned and uploaded to the portal and the filing fee paid by credit/debit card.
  5. The Notice of Intended Application is automatically published on the online registry website.
  6. The Summons for Probate is the downloaded from the portal.
  7. The original will and the Summons for Probate is then sent by registered or express post to the Probate Registry.
  8. The processing time is 4 to 6 weeks from the date of receipt of the documents by post.

Problems that may cause your application to be rejected

  1. The attestation clause (area on the last page where the testator and the witnesses sign) is not properly constructed according to legislation.
  2. The will does not deal with the entire estate of the deceased (this can mean that there is partial intestacy and the application must then be for letters of administration with the will annexed).
  3. There are no instituted executors or substituted executors that are willing or able to carry out their duty as a proving executor(s).
  4. The name of the testator is not identical to that in the death certificate.
Probate Process in NSW

Need help with your legal matter?

Applying for probate or letters of administration is not necessarily simple or straightforward and there are legal obligations and duties on applicants. It requires a detailed review of the will, if a will exists, and the death certificate and other supporting documents to be sure all potential issues are dealt with in the application documents.

We recommend calling AussieLegal on our free 1300 728 200 helpline to speak to one of our experienced paralegals to discuss your situation.

AussieLegal has successfully completed over 3,200 probate and letters of administration application over the last 20 years.

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