HOW MUCH DOES IT COST TO PROBATE A WILL IN AUSTRALIA IN 2022
Losing a loved one is a difficult time and dealing with a deceased person’s will and estate can further add stress to such a challenging time. Despite this, obtaining probate of a Will is an important step to take to ensure that beneficiaries of the deceased person’s Will are able to receive any entitlements they have under the Will. At Alan Rigas Solicitors, our expert team of estate lawyers can ensure that you are given the be possible options and avenues to deal with this area of law.
What is Probate?
Probate is a court order granting the Executor of a deceased’s estate approval to distribute the estate’s assets to beneficiaries in accordance with the deceased’s last Will. It is important that an Executor ensures the assets are distributed according to the deceased’s Will. The Supreme Court in each state and territory of Australia assesses application for probate of a deceased’s Will. Probate fees are payable at time of application to the Court. The court will appoint an Executor if the deceased hasn’t nominated one.
Why is Probate Important?
Most banks and other asset holders, such as insurance companies and superannuation funds, require a Grant of Probate or Letters of Administration before releasing or transferring assets to the Executor or Administrator. The Grant of Probate or Letters of Administration is the legal proof required by holders of the deceased’s assets before they are prepared to deal with an Executor or Administrator in relation to the deceased’s assets. Once Probate has been granted, management of the deceased’s assets can legally be transferred to the Executor/s who can then proceed to administer and distribute the assets of the deceased’s estate in accordance with the deceased’s Will. All Grants of Probate are stored with the corresponding Will, at the Supreme Court. These are public documents. It is important to remember that Probate granted in NSW permits an Executor, to only deal with assets of the Estate held in NSW. Where a deceased held assets in another Australian state or territory, or overseas, a Reseal of Probate or a new Grant may be required to deal with assets left by the deceased in those jurisdictions. Another benefit of obtaining Probate is that Court orders ensure the Executor can’t be sued if someone disagrees with what’s been done, particularly where the Executor has distributed the deceased’s assets in accordance with the deceased’s Will.
How Much does Probate cost in NSW?
Probate Advertising Fee (NSW)
Prior to lodging an application for the grant of probate, you must lodge an online probate notice, sometimes referred to as a probate advertisement fee to demonstrate your intention to apply for probate.As at the time of writing (subject to change), the fee for publishing an online notice to apply for a grant of probate is $48.00.
Probate Filing Fees (NSW)
The filing fee for probate depends on the size of the estate in question.As at the time of writing (subject to change), the probate filing fee in NSW is set out in the table below:
Size of Estate
Court Filing Fee
less than $100,000
$100,000 or more but less than $250,000
$250,000 or more but less than $500,000
$500,000 or more but less than $1,000,000
$1,000,000 but less than $2,000,000.00
$2,000,000 or more but less than $5,000,000.00
$5,000,000 or more
Additional Fees Involved with Filing for Probate
Costs of Probate in NSW vary as the court may charge further fees for additional work that needs to be done in regard to probate such as: ● Depositing a Will with the court for safe keeping;● Scanning or photocopying a Will;● Amending or re-issuing a grant;● Completing a genealogical search for a file. ● A full list of fees associated with probate in the Supreme Court of NSW can be found at https://www.supremecourt.justice.nsw.gov.au/Pages/Current-fees.aspx
Who pays for the Probate Application Process in NSW? / Who Pays Probate Costs?
Probate costs in NSW are generally paid for by the estate of the deceased.
HeadingWhat’s included in probate costs?
Probate costs usually include the Court’s fee for the application for probate and the online probate notice fee. In addition to this, if a lawyer is engaged to undertake the application for probate, then there will also be professional fees charged by the lawyer for their services. The average cost of a probate lawyer and the professional fees a lawyer is able to charge for obtaining a grant of probate and administration matters are set out in the Legal Profession Uniform Law Application Regulation 2015 (NSW).As at the time of writing (subject to change), these Regulations set out the professional fees as follows: (Note: These fees do not include GST and disbursements such as filing fees)
Disclosed value of assets
Not exceeding $30,000
Plus $13.33 for every $1,000 up to $30,000
Exceeding $30,000 but not exceeding $150,000
Plus $5.90 for every $1,000 over $30,000
Exceeding $1,000,000 but not exceeding $3,000,000
Plus $1.66 for every $1,000 over $1,000,000
Exceeding $3,000,000 but not exceeding $5,000,000
$8,800 Plus $1.10 for every $1,000 over $3,000,000
Exceeding $5,000,000 but not exceeding $10,000,000
Plus $0.90 for every $1,000 over $5,000,000
How do I apply for a Grant of Probate?
To obtain a Grant of Probate, the Executor named in the Will must apply to the Probate Office of the Supreme Court. If the application is approved, the Executor is provided with a Grant of Probate to confirm: ● That the deceased had died leaving a Will;● That the Will is authentic, and;● That the Executor has the power to deal with the assets of the deceased’s estate. Normally only the Executor/administrator in the deceased’s Will can apply for a Grant of Probate.The Executor can be an individual or more than one person acting jointly, and the Executor/s must be over the age of 18.
What does an Application for Probate include?
The process of obtaining Probate is a formal one, requiring a number of steps to be taken by the Executor in order for the Supreme Court to issue a Grant of Probate.
To make an application for Probate, you must: ● Locate the original Will of the deceased.● Place an online advertisement advising of your intention to make an application for Probate. The Notice must be advertised for a period of at least 14 days, prior to an application for probate being filed with the Supreme Court. ● Make reasonable enquiries to establish the assets and liabilities of the deceased. As part of the Probate process, you will need to prepare an inventory of assets and liabilities of the deceased, which includes real estate that the deceased may have owned solely or jointly with others in NSW. Following this, an application for Probate is prepared for submission to the Court. There are several documents that must be prepared as part of the application, these may include: ● A Summons to be filed with the Court;● An affidavit of the Executor, which is a sworn statement by the Executor/s of the deceased estate setting out a number of matters relating to the deceased’s estate, recognition of the Deceased’s Will, and setting out the deceased’s assets and liabilities;● Copies of the draft grant of Probate;● The Original Will (and any codicils);● The Death certificate of the deceased.
Do you need a solicitor for Probate in NSW?
Getting an application for Probate correct is vital to avoid delays with Probate being granted. The process of obtaining probate can be confusing and time consuming for an Executor particularly at times when you are left grieving the death of a loved one. There are strict steps that must be followed in making an application for probate, which when not followed, usually results in the Supreme Court issuing Requisitions. Requisitions are requests by the Court for further information or to undertake further actions before a grant of Probate can be made. The majority of executors appoint a lawyer to satisfy the requirements for the grant of Probate so that probate can be granted at the earliest time and to assist with the administration of the deceased’s estate.
The material included in this article is designed and intended to provide general information in summary on the granting of probate in Australia (2022), which is current at the time of publication, for general purposes only. The material does not apply to all jurisdictions. This article does not constitute legal advice. This article is not intended to be a substitute for legal advice you obtain from a lawyer and as such, you should not rely upon this article as legal advice or a substitute for legal advice. Dealing with wills can be a complicated and time-consuming matter which can be highly emotional and overwhelming for some. Contacting an experienced solicitor will provide you with the assistance and guidance you need to meet all the legal questions and challenges faced when dealing with wills. Contact our office to speak with one of our experienced solicitors who can help guide you through the probate process in Australia and assist you will all your will and estate needs.