When someone close to you dies, the paperwork is the last thing you want to think about. Yet within days, family members often find themselves asking practical questions. Where is the will? Who is in charge? Can the bank accounts be accessed? Do we need probate?
If you’re wondering what happens after someone dies with a will in NSW, this guide gives an overview of the whole journey, from the first few days to the final distribution of the estate. Every estate is different, but the broad steps are similar.
The First Few Days
Registering the death
The death needs to be certified by a doctor and registered with the NSW Registry of Births, Deaths and Marriages. In most cases the funeral director arranges the registration. A death certificate is then issued, and you will need copies for banks, insurers and other organisations.
Finding the will
Look for the original will among the person’s papers and contact their solicitor if you know who prepared it. Wills are sometimes held in a law firm’s safe custody or with NSW Trustee & Guardian. The original is important, because probate generally requires the original document.
Funeral arrangements
The will may include wishes about the funeral, burial or cremation. The executor is usually the person with the right to make funeral arrangements, although in practice families make these decisions together. Funeral costs are generally paid from the estate.
The Executor’s Role
The will should name one or more executors. The executor is responsible for collecting the assets, paying debts and distributing the estate in line with the will. It is a role of trust and carries legal responsibilities.
An executor is not obliged to accept the role. If they do not want to act, they can renounce, but they should get advice before taking any steps that might be seen as accepting the role.
In the early weeks, an executor will usually:
- secure the home, vehicles and valuables, and check insurance
- notify banks, super funds, Centrelink, insurers and utility providers
- gather information about assets and debts
- keep records of everything they do and every expense they pay
Do You Need Probate?
Probate is the Supreme Court of NSW’s formal recognition that the will is valid and that the executor has authority to deal with the estate. Whether it is needed depends on what the person owned and how it was held.
| Asset | Is probate usually needed? |
|---|---|
| Real estate in the deceased’s sole name | Usually yes |
| Real estate held as joint tenants | Usually no; it passes to the surviving owner |
| Joint bank accounts | Usually no |
| Bank accounts or shares in the deceased’s sole name | Depends on the value and the institution’s requirements |
| Superannuation | Depends on the fund and any beneficiary nomination |
Superannuation and jointly held assets generally do not form part of the estate dealt with by the will, which is why it helps to get advice about the full picture.
Applying for Probate
An application for probate is made to the Supreme Court of NSW. Before filing, the executor must publish a notice of intended application online. The application itself includes the original will, the death certificate, an affidavit from the executor and an inventory of the estate’s assets and liabilities.
Once granted, the executor can use the grant to collect assets, sell or transfer property and close accounts. Timeframes vary depending on the court’s workload and whether any issues arise with the will.
Paying Debts and Tax
Debts, funeral costs and the expenses of administering the estate are paid before beneficiaries receive their inheritance. The executor may also need to lodge a final tax return for the deceased and, in some cases, tax returns for the estate itself. An accountant can help with this.
Possible Claims on the Estate
Certain people, such as spouses, children and some dependants, can apply to the court for a greater share of the estate if they believe they have not been adequately provided for. In NSW, a family provision claim must generally be made within 12 months of the date of death.
Because of this, executors are often advised to be cautious about distributing the estate too early. If a claim is made, our contested wills team can help.
Distributing the Estate
Once assets have been collected, debts paid and any claims resolved, the executor distributes the estate according to the will. This might involve transferring property, selling assets and paying out cash gifts. The executor should keep clear accounts and obtain receipts or releases from beneficiaries.
What Happens After Someone Dies With a Will: A Summary
- Register the death and obtain death certificates
- Locate the original will
- Arrange the funeral
- Executor secures assets and notifies organisations
- Work out whether probate is needed and apply if so
- Collect assets, pay debts and finalise tax
- Allow for any family provision claims
- Distribute the estate and close the administration
When Legal Advice Helps
Some estates are simple. Others involve property, businesses, overseas assets, unclear wills or family tension. A solicitor can prepare the probate application, explain the executor’s duties and help protect the executor from personal liability. Early advice also helps families avoid disputes that can be costly and painful.
Talk to Our Team
MCB Lawyers has been helping Northern Beaches families with estates since 1945. Our probate and estate administration team can guide executors through each step, and our wider wills, estate and probate services cover planning for the future too. Contact us to talk about your situation.
This article is general information only and is not legal advice. Please speak with a solicitor about your circumstances.