Dealing with the loss of a loved one is always challenging, and the legal responsibilities that follow can often feel overwhelming. If you’re appointed as the executor of a will or you’re a close family member of the deceased, understanding how to manage a deceased estate in New South Wales (NSW) is crucial. This guide outlines the legal steps, duties, and common considerations involved in administering a deceased estate in NSW.
What Is a Deceased Estate?
A deceased estate is the total collection of a person’s assets, liabilities, and legal obligations left behind after their death. These may include real estate, bank accounts, superannuation, shares, vehicles, debts, and any personal belongings. Administering the estate involves collecting these assets, paying off any debts and taxes, and distributing what’s left to the rightful beneficiaries in accordance with the will or intestacy laws.
First Legal Steps After Death in NSW
Before the estate can be distributed, certain initial steps must be taken:
1. Register the Death
The death must be registered with the NSW Registry of Births, Deaths and Marriages. This is typically done by the funeral director. Once registered, you will receive a death certificate, which is essential for all legal and financial processes related to the estate.
2. Secure the Assets
Ensure all property and assets are secured to prevent damage, theft, or unauthorised use. For example, change locks if necessary and notify banks and financial institutions of the death.
3. Locate the Will
The executor should locate the original will, often held with a solicitor, in a safe, or at the deceased’s home. If there is no valid will, the estate is treated as intestate and distributed under the Succession Act 2006 (NSW).
The Role and Duties of the Executor
An executor is the legal personal representative named in the will who is responsible for managing the deceased estate. Their duties include:
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Applying for a grant of probate (if required)
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Identifying and collecting assets
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Paying off any outstanding debts or taxes
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Distributing the estate in accordance with the will
An executor must act in good faith and in the best interests of the beneficiaries, following all relevant legal obligations.
Do You Need Probate in NSW?
Probate is a legal process where the Supreme Court of NSW officially recognises the executor’s authority to manage the estate. Probate is generally required if:
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The deceased owned real estate solely in their name
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Financial institutions demand it to release funds
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There is a dispute or uncertainty regarding the will
If there is no will, an eligible person—often a spouse, child, or close relative—must apply for Letters of Administration.
Applying for Probate in NSW: Step-by-Step
Here is an overview of how to apply for probate:
1. Advertise the Notice of Intention
You must publish a probate notice online via the NSW Supreme Court website at least 14 days before lodging the application.
2. Prepare and Lodge the Application
Include the original will, the death certificate, and completed court forms. You may need to provide an inventory of property and a statement of assets and liabilities.
3. Pay the Filing Fee
The probate fee varies depending on the value of the estate. Concessions are available for eligible applicants.
4. Await the Grant
Once approved, the court issues a Grant of Probate, enabling the executor to legally manage the estate.
Administering the Estate
With probate granted, the executor’s duties expand to:
1. Collecting and Valuing Assets
This includes contacting banks, insurers, the ATO, and any companies where shares or investments are held. Property may need to be professionally valued.
2. Paying Debts and Taxes
Debts such as loans, credit cards, utility bills, and funeral costs must be paid. Executors must also lodge any outstanding tax returns, including a final tax return and potentially a Deceased Estate Tax Return.
3. Distributing the Estate
After debts and taxes are settled, the executor distributes the remaining assets to beneficiaries as outlined in the will. In intestate cases, distribution follows a set hierarchy.
What If There’s No Will? (Intestacy Rules)
If the deceased didn’t leave a valid will, their estate is distributed according to NSW intestacy laws:
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Spouse receives the majority or entirety of the estate
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Children, parents, siblings, and other relatives may also be entitled depending on the family structure
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The court appoints an administrator to manage the estate
Disputes can arise, especially in blended families or where relationships were complex. In these cases, seeking legal guidance is essential.
Dealing with Will Disputes or Claims
Beneficiaries or eligible persons (e.g. spouses, de facto partners, children) can contest the will if they believe it was unfair or if they were left out.
This is done through a Family Provision Claim, usually lodged within 12 months of death. Courts will consider:
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The relationship between the deceased and claimant
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Financial needs of the claimant
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Size and nature of the estate
These matters are legally complex and may delay estate administration, so early legal advice is recommended.
Common Challenges Executors Face
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Locating all relevant assets and debts
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Dealing with family tensions or legal claims
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Handling tax and financial complexity
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Navigating court procedures and deadlines
To avoid costly mistakes, executors often engage a solicitor who specialises in deceased estates to guide them through the process.
When to Seek Legal Help
While some straightforward estates can be managed without legal help, it’s advisable to seek professional support if:
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There’s no will or the will is unclear
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The estate is large or includes international assets
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There are disputes between beneficiaries
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You are unfamiliar with legal or tax obligations
At Lyon Legal Services, we provide compassionate and comprehensive estate administration services across NSW. Whether you’re an executor managing a complex estate or a beneficiary needing advice, we’re here to help.
Final Thoughts
Managing a deceased estate in NSW is a serious legal responsibility that requires attention to detail, compliance with court procedures, and sensitivity to family dynamics. From obtaining probate to distributing assets, each step must be carefully followed to avoid legal issues or delays.
Whether you’re an executor or simply supporting someone through the process, understanding your duties and accessing professional guidance is the best way to ensure the deceased’s wishes are honoured and the estate is properly managed.
Frequently Asked Questions (FAQ)
Do all estates require probate in NSW?
No. Small estates, or those with jointly held assets, may not need probate. Banks and institutions may release funds at their discretion.
How long does estate administration take?
It typically takes 6–12 months, depending on the estate’s complexity, court processing times, and any disputes.
Can an executor be personally liable?
Yes. If an executor breaches their duties or mismanages the estate, they may be held personally liable by beneficiaries or creditors.
What if a beneficiary lives overseas?
The executor must still distribute assets to international beneficiaries. Additional documentation or legal steps may be required.
