A will can appoint you as executor, but that does not automatically give you access to every asset in the estate. The practical question is when do you need probate to deal with a deceased person’s bank accounts, property, shares and investments in New South Wales. The answer depends on what they owned, how it was owned and what the organisation holding the asset requires.

Probate is a grant issued by the Supreme Court of NSW. It confirms that a will is valid for administration purposes and gives the executor formal authority to collect estate assets, pay liabilities and distribute the estate to beneficiaries. It is not required in every estate, but applying when it is needed can prevent costly delays and disputes.

What probate allows an executor to do

A grant of probate is directed to the executor named in the deceased person’s most recent valid will. Financial institutions, share registries, aged care providers and NSW Land Registry Services commonly rely on the grant before releasing or transferring significant assets. It gives those organisations confidence that they are dealing with the right person and that the estate can be safely administered.

Probate does not decide whether the will is fair, nor does it remove every potential claim against the estate. It is a legal authority to administer assets according to the will, subject to the executor’s duties and any valid challenge or family provision claim.

Where there is no valid will, probate is not available. Instead, an eligible person may need to apply for letters of administration. The overall purpose is similar, but the rules about who can apply and who inherits are different.

When do you need probate in NSW?

You will usually need probate where the deceased held assets in their sole name and the asset holder requires a court grant before it will release or transfer them. There is no single NSW asset-value threshold that applies to every estate. Each bank, insurer, share registry and organisation sets its own requirements, so an estate with a modest total value may still need probate.

Solely owned real estate

Probate is commonly required if the deceased owned land, a unit or another interest in NSW real property solely in their name. The executor will generally need the grant to register a transmission application and then transfer or sell the property under the will.

Ownership structure matters. If a home was owned by two people as joint tenants, the surviving joint owner can usually apply to have the title recorded in their sole name by survivorship. That property does not ordinarily form part of the estate for probate purposes. If the owners held the property as tenants in common, the deceased’s share forms part of their estate and a grant will normally be required.

This distinction can have significant consequences for blended families, investment properties and estate planning. The title search, rather than assumptions based on a couple’s relationship, will show how the property was held.

Bank accounts and term deposits

A bank may release a small balance without probate if it is satisfied with documents such as the death certificate, will and executor identification. For larger balances, term deposits or complex account arrangements, it will often require a grant.

Do not rely on a figure quoted by a friend or found online. Policies differ between banks and can change. Contact each institution early, ask what it requires and obtain the answer in writing where possible. The account should not be used as though it were the executor’s personal money, even where the executor is also a beneficiary.

Shares, managed funds and significant investments

Listed shares, managed investments and certain bonds are frequently held in a sole name. Registries commonly ask for probate before they will transmit or sell holdings above their internal threshold. The same may apply to dividends or sale proceeds still payable to the estate.

If investments are spread across several platforms, work out the requirements for each one. A grant obtained for one asset can then be used across the estate, avoiding separate workarounds and repeated requests for documents.

Refunds, insurance proceeds and money owed to the estate

Amounts owed to the deceased may also require probate before they can be collected. Examples include substantial tax refunds, unpaid wages, private loans, compensation payments or insurance proceeds payable to the estate rather than to a nominated beneficiary.

The terms of the relevant policy or account are critical. A payment may pass directly to a nominated person, to a trustee, or into the estate. Those outcomes are not interchangeable.

Assets that may not require probate

Some assets pass outside the estate or can be dealt with using less formal documentation. That does not always mean they are free from legal or tax consequences, but it can mean a probate application is unnecessary for that particular asset.

Jointly owned bank accounts generally pass to the surviving account holder, although the circumstances should be reviewed where the account held substantial funds contributed by the deceased. Assets held by a family trust or company belong to the trustee or company, not the individual personally. The deceased’s shares in a company, or their role as trustee or director, may still create separate succession issues.

Superannuation and life insurance often sit outside the estate. A super fund trustee decides who receives the death benefit unless there is a valid binding death benefit nomination. Depending on the fund rules and nomination, it may be paid directly to a dependant or legal personal representative. If it is paid to the legal personal representative, it becomes part of the estate and is then distributed under the will.

Personal belongings, household contents and a motor vehicle can sometimes be transferred without probate. The relevant organisation may still request a certified death certificate, the will, executor identification or an indemnity. Never distribute valuable items before checking whether they are specifically gifted in the will or needed to pay estate debts.

A practical way to assess the estate

Before deciding whether to apply, prepare a clear asset and liability schedule. This gives you a reliable picture of the estate and helps identify what can be dealt with immediately and what requires a grant.

Include the following information:

• real property, with current title details and the way each property is owned;
• bank accounts, term deposits, shares, investments and digital financial accounts;
• superannuation, life insurance and any death benefit nominations;
• vehicles, valuable personal items and money owed to the deceased; and
• mortgages, credit cards, loans, tax obligations, funeral expenses and other debts.

Send a copy of the will and death certificate to each asset holder and ask its deceased-estate team whether probate is required. Keep a record of account balances as at the date of death. This information is needed for the probate application and for accurate estate accounts.

Do not distribute the estate too early

Executors have duties to beneficiaries, creditors and, in some cases, people who may bring a family provision claim. In NSW, a family provision claim must generally be made within 12 months of the date of death, although the Court can allow a late claim in some circumstances.

For that reason, distributing an estate immediately after receiving probate can expose an executor to personal risk. The appropriate timing depends on the estate’s assets, debts, known family circumstances and whether notice procedures have been used. Selling a property, finalising tax and resolving a dispute can also affect when funds should be released.

An executor should protect estate assets, keep proper records and avoid favouring one beneficiary over another. If the will is unclear, a person may challenge its validity, or the estate includes a business, trust, foreign asset or potential insolvency, obtain advice before taking irreversible steps.

What happens in a NSW probate application

A probate application involves more than lodging the will. The executor must identify the correct original will, confirm its validity, prepare an inventory of property and meet the Supreme Court’s procedural requirements. Depending on the circumstances, this may include explaining alterations to the will, missing pages, an informal document, an executor who has died or an issue with how the will was signed.

The application is generally supported by an affidavit from the executor and is lodged with the Supreme Court of NSW. After probate is granted, the executor uses the sealed grant to call in assets, deal with property and complete the administration. Straightforward applications can still be delayed when documents are incomplete or asset information has not been gathered carefully.

If you are unsure whether an estate needs a grant, getting advice early can save time and reduce the risk of taking the wrong step. GKE Lawyers can review the will, ownership records and asset information, then provide clear advice on the NSW process and the work required to administer the estate properly.