In short
The right grant depends mainly on whether there is a valid will and whether its executor can act. Probate is used by an executor under a will. Letters of administration are usually needed where there is no valid will, while letters of administration with the will annexed may be appropriate where the will remains valid but no executor can act.
The first question, however, is whether the estate needs a court grant at all. Some assets pass outside the estate or can be released without one, so the ownership of each asset and the asset holder’s requirements should be established before an application is prepared.
Do you need a court grant for this estate?
Not every estate asset requires probate or administration. A grant is the Court’s formal confirmation that a particular person has authority to collect, transfer and sell estate assets.
For example, a home owned as joint tenants ordinarily passes to the surviving joint tenant rather than through the estate. A bank may release a modest account under its own deceased-estate process but require a grant for a larger balance. Land held in the deceased’s sole name will often require formal authority before it can be sold or transferred.
Superannuation and life-insurance benefits can also be paid outside the estate. Their destination depends on the fund rules, nominations, policy terms and other governing documents rather than the will alone.
A useful first step is therefore to list each asset, record how it is owned and find out what the bank, share registry, insurer or other asset holder requires. That exercise may show that only some assets need a grant—or that no grant is needed.
Which grant fits the situation?
If the original will is valid and names an executor who can act, the executor applies for a grant of probate. Probate confirms that the Court accepts the will and recognises the executor’s authority to administer the estate.
If there is no valid will, there is no executor chosen by the deceased. An eligible person, often someone with the strongest entitlement to inherit, may apply for letters of administration. The administrator then distributes the estate under the NSW intestacy rules rather than according to a will.
A third situation sits between those two. The will may remain valid, but every named executor may have died, renounced the role or be unable to act. The Court can then appoint another person under letters of administration with the will annexed. The appointed person administers the estate, but the will can still determine who inherits.
That distinction matters: a problem with the executor does not necessarily make the estate intestate. Our guide to intestacy in NSW explains what happens when there is no valid will governing distribution.
What if an executor does not want to act?
An executor is not required to take on the role simply because the will names them. Depending on the circumstances, an executor who does not intend to act may formally renounce probate or, where there are several executors, reserve the right to apply later.
The position should be settled before anyone represents to an asset holder or buyer that they have authority over the estate. If several people have an equal or stronger right to apply for administration, the Court may also require their consent, notice to them or evidence explaining why a particular applicant should be appointed.
Where family members disagree about who should administer the estate, the dispute can delay the grant even if there is no disagreement about who ultimately inherits.
What if the original will is missing or the document is informal?
A scanned copy, unsigned note, electronic file or other informal document does not automatically mean that the person died intestate. In some circumstances, the Court can accept an informal document as a will, but it will need evidence about how the document was made and whether the deceased intended it to operate as their will.
A missing original creates a different evidentiary problem. The Court may need to know where the original was kept, when it was last seen and whether the deceased might have revoked it.
The physical document can itself be evidence. Staples, handwriting, page order and signs of alteration may help explain how it was executed or changed. For that reason, any version found should be kept in its existing condition rather than written on, unstapled or rearranged.
The file held by the solicitor who prepared the will may contain execution notes, earlier drafts and instructions that help answer these questions.
What has to happen before the application is filed?
The application must establish the death, the document or intestacy basis being relied on, the applicant’s right to act and the assets and liabilities that make up the estate.
In the Supreme Court’s current online process, commencing the application publishes the notice of intended application. At least 14 days must then pass before the summons and supporting documents are filed.
If the first grant application is filed more than six months after the death, the Court also requires an explanation for the delay. A late application is not automatically barred, but missing records or an unexplained delay can make the process slower.
The evidence commonly includes:
- the death certificate;
- the original will and any codicil or later version;
- an inventory of assets and liabilities with current values;
- information about the deceased’s close family;
- any executor renunciation or relevant consent; and
- evidence explaining a missing original, informal document or delayed application.
Why shouldn’t beneficiaries be paid immediately?
Receiving the grant puts the executor or administrator in charge of the estate. It is not a clearance certificate saying that the estate can immediately be distributed.
Funeral costs, tax, loans, unpaid bills and administration expenses need to be dealt with first. The legal personal representative must also consider whether an eligible person may bring a family provision claim. In NSW, the ordinary time limit for starting such a claim is 12 months after death, unless the Court permits a late claim.
If the estate is distributed before a valid debt or claim has been resolved, the representative may have to recover money from the beneficiaries. If the money cannot be recovered, the representative may face personal exposure to the shortfall.
Section 92 of the Probate and Administration Act 1898 can provide protection against later claims of which the representative had no notice. To rely on that protection, the representative must publish a notice of intended distribution, allow at least 30 days after publication and not distribute until at least six months after the death. The protection does not extend to claims already known when the distribution is made.
Our probate and estate administration service covers the process from choosing the grant through to distribution. Where a proposed distribution may be challenged, our information about family provision claims explains that separate issue.
What information should you gather now?
The immediate task is to establish the estate’s practical position: preserve the original will, record the ownership of each asset, find out which asset holders require a grant and identify who is entitled to apply.
That work should happen before an estate property contract is signed. A will may name the person who is intended to act, but the seller still needs the legal authority required for the particular transaction.
Primary sources
Law and procedure checked 13 August 2026.
If you need to identify the correct grant, contact Biz Lawyers & Advisory or call 1800 893 836.
This article provides general information only and is not legal advice. The correct process depends on the will, family, asset ownership, debts and possible estate claims.
