What to do with the estate
After you have gathered information about the assets and debts of the deceased, you need to work out how to deal with the estate, including paying debts, and distributing the property and personal belongings of the deceased. The process you will need to follow depends on whether or not the deceased had a will.
When there is a will
If you are an executor in the deceased's will, you have certain duties to protect the estate. The most important duties of the executor include:
- taking control of the assets owned by the deceased;
- identifying debts owed to and by the estate;
- applying for a grant of probate at the Supreme Court of New South Wales;
- paying the debts of the deceased; and
- distributing the estate to the beneficiaries according to the will after obtaining a grant of probate.
For more information, see
Applying for probate.
If you are named as an executor and you do not want to act as executor, you should get
legal advice or contact the
NSW Trustee & Guardian.
If you are a beneficiary under a will, next of kin or relative of the deceased and the executor is unable or unwilling to apply for probate, you should get
legal advice or contact the
NSW Trustee & Guardian.
For more information, see
Executors not able to act.
When there is no will
If you are a next of kin, relative or close friend of the deceased, you may apply to the Supreme Court of NSW for letters of administration to distribute the deceased's estate where:
- there is no will, or
- there is a will but there is no executor named in the will, or
- the executor in the will is unable or unwilling to act.
For more information, see
Applying for letters of administration.
Is probate or administration always needed?
Sometimes a grant of probate or letters of administration may not be needed. For example, a grant is usually not needed where:
- the estate includes only real estate owned as 'joint tenants' and jointly owned personal property, or
- none of the asset-holders (for example, the bank where the deceased held an account) require a grant to transfer the asset to a beneficiary or to sell it.
In circumstances where the value of the estate is small and only includes personal property, such as clothing, furniture and jewellery, a grant may not be needed.
If probate or administration is not needed, the next of kin can distribute the estate after dealing with the deceased's debts. For more information see,
Dealing with the estate debts and
Distributing the estate.
It is a good idea to find out the market value of the assets owned by the deceased so that you can decide whether to apply for a grant of probate or letters of administration.
You should get
legal advice if you are not sure whether you should apply for probate or administration.
When to see a lawyer
If you are an executor or next of kin, you may wish to get legal advice from a lawyer. A lawyer can assist you to obtain a grant of probate or letters of administration from the Supreme Court of New South Wales.
Before you make an appointment to see a lawyer, you should consider:
- whether you want a lawyer to apply for probate or letters of administration on your behalf, and
- whether there is enough money in the estate to pay for the legal costs.
In NSW, the amount a lawyer can charge for work they do up to obtaining the grant of probate or letters of administration is set by law. The set fees are based on the value of the estate.
For more information on the set fees, go to schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 on the
NSW legislation website.
It is important to remember that the set fees do not include:
- goods and services tax (GST)
- disbursements (expenses) paid to third parties such as court filing fees and online registry notice fees
- work carried out by the lawyer to administer the estate after the grant of probate or letters of administration. For example, transferring property to the beneficiaries.
A lawyer must provide you with a costs agreement and disclosure in writing.
Before going to see the lawyer, it is useful to gather information about all assets and debts of the deceased. You should take copies of all important documents, including financial statements, the will and the death certificate.
Checklist: Preparing to see a lawyer
For more information about lawyers, see the
Dealing with your lawyer topic on our website.