Frequently Asked Questions ​

Who do you ​​notify after someone dies?

​​​1. My wife passed ​​away recently. My wife was a pensioner and receiving disability pension payments from Centreli​​​​nk. Do I have to notify Centrelink about my wife's death?

As the spouse of the deceased, it is your responsibility to notify Centrelink and other relevant organisations about your wife's death.  You should do this as soon as possible to avoid an overpayment. 

For more information, see Who do you notify after someone dies?

2. My boyfriend​​ passed away last week. He didn't have a will.  We were in a relationship for 12 m​onths and do not have any children. Do I have to notify organisations about his death?

Your boyfriend's next of kin will have the legal responsibility for notifying organisations about his death.  If you were not in a de facto relationship, you do not need to notify any organisations about the death of your boyfriend. 

If your boyfriend did not have a family or close relatives at the time of his death, you should get legal advice.

3. I have misplaced​ the death certificate. Can I get a new one​?

If you have lost, destroyed or misplaced the original death certificate, you can apply for a replacement from the NSW Registry of Births, Deaths & Marriages if the person died in New South Wales. If they died outside of New South Wales, you will need to apply in the state where they died.

If you are the next of kin named on the death certificate, for example, the spouse, parent or child of the deceased, the death certificate will be issued to you. If the deceased had no living spouse, parent or child, the certificate can be issued to another relative.

You will need to pay a fee for the new death certificate.

For more information, see The death certificate.

4. Do I need to hand ​​​over the original death certificate to the b​ank when I notify them of the death of the deceased?

You should not give or send the original death certificate to any organisation. A certified copy is usually acceptable. In some situations, the bank may ask to see the original.  If that happens, it is a good idea to go to the branch with the original death certificate. 

You must file an original death certificate when applying for probate or letters of administration at the Supreme Court of NSW. 

You should make several photocopies of the original death certificate and have it certified by a lawyer or Justice of the Peace. 

Funerals ​

1. I am trying to arrange my de facto partner's funeral but his parents want the funeral to be held in another location. My de facto partner did not have a will.  Who is authorised to make the decision?

The deceased's spouse has the authority to make decisions about the funeral if there is no valid will. The 'spouse' means the husband or wife of the deceased, a de facto partner (including same sex partners) who lived together with the deceased for a continuous period of at least 2 years, or had a child from the relationship.

For more information, see Funerals.

2. I am named as an executor in my dad's will. My dad had very little money and property.  Am I responsible for paying for the funeral even if there are no funds in the estate?

Before you arrange the funeral, you should check whether the deceased held funeral insurance or life insurance that will pay for the funeral expenses.  If the deceased did not make arrangements to pay for their own funeral and if there isn't enough money in their bank account to cover the funeral expenses, you have the option of either paying for the funeral yourself or you can apply for a destitute funeral.

For more information, see Paying for the funeral.

3. I am arranging the funeral for my mum. I am aware that my mum and aunt didn't talk for many years. Should I notify my aunt of my mum's death?

Although there is no legal requirement for you to notify your aunt, you may still want to tell her about your mother's death to give her an opportunity to attend the funeral and pay her last respects. You may also want to consider mediation at a Community Justice Centre to try to resolve any disputes between family members.

4. My son's ashes are kept by my daughter in-law.  Am I entitled to some of my son's ashes?

The person who arranged the cremation has the right to decide what happens to the ashes. You can negotiate with your daughter-in-law and if you can't reach an agreement, consider mediation at a Community Justice Centre to try to work out a suitable arrangement.

For more information, see Funerals.

The will

1. I am not sure if my brother had a will. I've checked his personal papers at his home but haven't found any document that looks like a will. Where else should I check?

You should talk to other family members and ask them whether they are aware of a will made by your brother. You should also contact local lawyers in the area and NSW Trustee & Guardian.

For more information, see The will.

2. Do I need the original will to apply fo​r probate? Will the court accept a photocopy?

You need to file the original will when making an application for probate, even if the will is damaged.  In some situations, the court may accept a photocopy of the will, if the will is lost and you have made a genuine attempt to locate the original. You will be required to file an affidavit explaining what searches you have carried out to locate the original will.

If you only have a photocopy of the will, you should get legal advice.

Assets and debts

1. I am aware that my partner owned one property at the time of his death. How can I find out if my partner owned other properties in New South Wales?

You can find out if a person is the registered proprietor of a house, land or unit in New South Wales by doing an 'owner name search' at NSW Land Registry Services. 

For more information on finding out assets and liabilities of the deceased, see Assets and debts.

2. My dad made a binding nomination with his super fund and I was named as the sole beneficiary. My dad also had a valid will where he left his estate to me and my other two siblings.  Will my siblings also be entitled to a share in the death benefit?

If your dad made a valid binding nomination, the super fund should pay the death benefit to you, regardless of what is written in your dad's will. 

If the binding nomination had expired and your dad had not updated it, the super fund may choose to pay the death benefit to you or another dependent or to the estate.  If the death benefit is paid to the estate, the money will form part of the deceased estate and must be distributed in accordance with the will or by statutory order if there is no will.

For more information about death benefits, see Superannuation.

3. The super fund has sent me a cheque in the name of the deceased estate.  What should I do with the cheque?

The super fund may issue a cheque in the name of the estate if the deceased did not make a binding nomination and if there were no other dependents.

If you have received a cheque in the name of the estate, you should deposit the cheque into the estate's bank account so it can be distributed to the beneficiaries after the grant of probate or letters of administration.  You must not deposit the cheque into your own account. 

If you are not happy with the super fund's decision and you believe that you are entitled to the death benefit, you can lodge a dispute with the Superannuation Complaints Tribunal within 28 days of the decision of the super fund. 

If you want to make a claim, you should get legal advice.

What to do with the estate

1. My husband and I own a property as joint tenants. I am the executor of my husband's will.  Do I need to apply for probate after ​he dies?

If you own a property as joint tenants with the deceased, the surviving joint tenant will be entitled to receive the property.

You do not need to apply for a grant to transfer the ownership into your name unless the deceased owned assets in their own name or as tenants in common with another person. 

For more information, see What to do with the estate. 

2. Can I distribute the deceased's personal belongings before obtaining a grant from the Supreme Court of NSW?

If you are an executor named in a will, or you are applying for letters of administration, you should wait until you obtain a grant from the Supreme Court of New South Wales before you distribute anything from the estate.  If you are the next of kin of the deceased and you do not need to apply for a grant because of the nature of the deceased's estate, you may be able to distribute the personal effects of the deceased in accordance with the rules of intestacy. You should get legal advice first.

For more information, see What to do with the estate.

3. My dad died without a will last month. He didn't have a spouse at the time of death and is survived by his three adult children.  My sister told me she wants to take dad's cricket souvenirs that I've always wanted. We cannot agree.

You should try to speak to your siblings about how your dad's personal property will be distributed. If you cannot reach an agreement, you should consider going to mediation at a Community Justice Centre (CJC). 

If you cannot reach an agreement, you should get legal advice.

For more information, see Transferring personal property.

Applying for probate

1. Is the executor authorised to change the will after the testator has died?

The executor does not have authority to make any changes to the deceased person's will. The will cannot be changed by any person other than the testator. The testator may, at any time prior to their death and if they have legal capacity, revoke a will and make a new will.

2. Does a will need to be changed if a beneficiary changes their name?

If the name of the beneficiary has changed since the will was originally made, the beneficiary will need to show that they are the same person that has been named in the will, for example, with a change of name certificate or marriage certificate.  The testator is not required to make the change on the original will.

3. Can I apply for probate without publishing the notice of intended application in the NSW Online Registry?

You must publish the notice of intended application in the NSW Online Registry to give 14 days notice to creditors to make a claim on the estate. If you try to file your application for probate without publishing the notice, your application will be dismissed.

 For more information, see Applying for probate.

4. I recently found out that I am the executor of my aunt's will.  I don't want to act as an executor. What should I do?

If you are named as an executor and you do not want to act, you should check the wording of the will to see if another executor can apply for probate. 

You can complete and file a Renunciation of Probate form with the Supreme Court of NSW.

For more information, see When an executor is unwilling or unable to act. 

5. My husband died 12 months ago while we were on an overseas trip.  I have just returned to New South Wales.  Is it too late to apply for probate?

If the deceased died overseas, the death must be recorded in that country.  It is also very important that the death of any Australian overseas is reported to an Australian mission, embassy or consulate. For contact details, go to the Department of Foreign Affairs and Trade website.

An application for probate should be made within 6 months from the date of death.  If it has been more than 6 months since the deceased person has died, you will need to explain the delay, either in the Affidavit of the Executor or in a separate Affidavit (Form 40). ​

When applying for probate, you will need the original death certificate (and translation of the death certificate, if it is another language).

6. My wife died in Queensland but all her assets are located in New South Wales. Do I need to apply for probate in Queensland or New South Wales?

Usually, you will need to apply for probate in the state where the majority of the property is owned by the deceased.  Before you apply for Probate, it is important that you obtain a death certificate from the state where the person died.

If the deceased owned assets in more than one state, you should get legal advice.

7. I am one of the executors in a will and cannot agree with the other executor.  What happens if the two executors cannot agree?

The executors have a duty to obtain probate and distribute the estate to the beneficiaries according to the will.

If you are an executor and you cannot agree with the other executor and your disagreement is causing delay in the application for probate, you should get legal advice.  

If you want to still act as an executor, you can give notice to the other executor that you intend to apply for probate and ask the other executor to join in the application. If that executor does not respond within the specified time you may proceed to apply for probate on your own, however the executor may be able to join the proceedings later.

If you no longer want to be an executor, you should get legal advice.

Applying for letters of administration

1. I found my deceased uncle's will but he hasn't appointed an executor. Is a will still valid when no executor is appointed in the will?

A will can still be valid even if the testator has not appointed an executor. Usually the person who is entitled to the largest share is entitled to make the application for letters of administration with the Will Annexed.

If your uncle was married or in a de facto relationship with another person, his spouse is entitled to apply to the Supreme Court of New South Wales for letters of administration with the Will Annexed.  After the grant is obtained, the applicant is the 'administrator', with all the duties, obligations, rights and powers of an executor to carry out the wishes of the deceased as set out in his or her will.  

If you are not sure whether the document you have found is a will, you should get legal advice.

2. My de facto partner passed away 3 weeks ago.  She did not have a will. We were in a same sex relationship, living together for 5 years. I am aware that my de facto partner owned property in her own name.  Am I entitled to make an application for administration?

You are entitled to make an application for letters of administration provided you were in a 'domestic partnership' with the deceased at the time of death, this includes same-sex relationships.

For more information, see Applying for letters of administration.

3. Do I have to pay a bond when applying for letters of administration?

A bond is a security that the Administrator will, following the grant of letters of administration, comply with their obligations to administer the estate and distribute the estate to the beneficiaries entitled under the law.

The bond will be 'dispensed with' provided that you have given notice to each adult beneficiary that you intend to apply to the Court for Letters of Administration without a bond. It is then up to those adult beneficiaries to challenge the right to the bond.

A bond will be required where the beneficiary is either under 18 years of age or has no legal capacity unless consent is obtained from the guardian. 

If the beneficiary is a minor or does not have legal capacity, you should get legal advice. 

4. I have received requisitions from the Supreme Court of NSW, what do they mean?

A requisition from the Supreme Court of New South Wales is notice that some or all of the requirements of the court have not been complied with.  The court will not grant administration or probate until you have addressed each of the issues by filing further and/or amended documents.

If you do not understand the requisitions, you should get legal advice.

Grants from outside NSW

1. I am an executor of a will and obtained a grant in Victoria. The deceased owned an investment property in New South Wales.  Is the grant from Victoria valid in New South Wales?

If you have obtained a grant from another state in Australia, you will need to make an application for 'reseal' of probate at the Supreme Court of New South Wales before you can administer the deceased person's estate in New South Wales.

Before making an application for reseal, you must publish a public notice stating your intention to apply, 14 days before you file the application. The notice must be published online using an electronic form on the NSW Online Registry website.  You also have to pay a fee to publish the notice.

For more information, see Grants from outside NSW.

After probate or administration

1. I am an executor in a will and I have obtained a grant of probate. What do I do now?

Once probate or administration has been granted, the executor or administrator can:

• Collect (call in) the assets owned by the deceased
• Deal with the deceased's debts
• Publish a notice of intended distribution
• Distribute the estate.

For more information, see After probate or administration.

Distributing the estate

1. I am the administrator and have published a notice of intended distribution. What do I do now?

Once probate or administration has been granted (or if it was not needed), and a notice of intended distribution has been published, the executor or administrator (or next of kin) can distribute the estate after paying the deceased's debts.

There may be some forms to complete, and other steps to take, depending on the type of property to be distributed.

For more information, see After probate or administration.

2. I am a beneficiary under a will. How long will the administration of an estate take?

The actual time an executor takes to administer an estate can vary depending on a number of factors including:

• locating the beneficiaries
• how long it takes to sell the assets
• whether a person contests the will.

If you are a beneficiary and you believe that the executor has not administered the estate in a timely manner or has delayed administration, you should get legal advice.

3. Is an executor automatically entitled to the payment of commission for his or her duties?

There is no automatic entitlement to the payment of commission.  Some wills contain a specific legacy for the executor to cover his or her duties as an executor. In that event there is no requirement to apply for an order from the Supreme Court of New South Wales for commission.  If the executor is also a beneficiary entitled to a legacy or other bequest, there is no right to apply for commission.

If the executor is not a beneficiary and there is no specific provision made in the will for payment of commission, they can apply to the Supreme Court of New South Wales.

The payment of a commission may also be agreed by all the beneficiaries provided they are over​ 18 years of age and do not have a disability which affects their mental capacity. 

Family provision claims

1. I was left out o​​f my grandmother's will. She died two months ago. Am I eligible to make a family provision claim?

In order to obtain a family provision order, the law requires that eligible grandchildren prove that at any particular time they were a dependent of the deceased person and a member of the deceased's household, or that they are a person with whom the deceased person was living in a close personal relationship at the time of their death.

If you want to make a family provision claim, you must apply to the Supreme Court of New South Wales within 12 months from the date of death.

If you have been left out of a will and you are an eligible person, you should get legal advice before you make an application.  

For general information about contesting the will, see Family provision claims.