NSW Probate

Probate Law in NSW – When You Need Legal Help

Managing an estate can be complex. Learn how probate law works in New South Wales, when probate or letters of administration apply, and why experienced probate lawyers can guide you through every step with confidence.

📖 Read our latest blog to understand when legal help is essential. Learn more here: https://nswprobate.com.au/probate-law-in-nsw-when-you-need-legal-help/

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Dealing with a deceased estate can be overwhelming. Our experienced probate lawyers help executors navigate probate efficiently and avoid costly delays. Get clear legal guidance from start to finish.

👉 Learn how probate works in NSW. Visit our website for expert probate guidance: https://nswprobate.com.au/probate-process/

Many wills include specific gifts of personal items such as jewellery, artwork, or furniture. Executors must ensure these items are kept safe and delivered to the correct beneficiaries.

Items not specifically gifted usually form part of the “residue” of the estate. Before selling, donating, or disposing of these belongings, executors should consult the residual beneficiaries.

Executors are allowed to discard genuinely valueless or unusable items. However, if an executor mistakenly disposes of property that later proves to have value, they may be held personally liable for mismanaging the estate.

Executors should also be cautious when interpreting the will. If the wording is unclear, especially in informal or self-drafted wills, legal advice or court guidance may be necessary to avoid costly mistakes.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au

One of an executor’s first responsibilities is to identify and document all estate assets and liabilities. This usually involves preparing a detailed inventory and, where appropriate, arranging valuations.

This process protects both the executor and the beneficiaries. Clear records help demonstrate that estate property has been preserved, not misused, sold improperly, or given away without permission.

Executors must preserve estate assets and maintain their value until they are transferred to beneficiaries. Even items that appear minor or sentimental may still hold monetary or legal significance. If an executor gives away property contrary to the will or without consent, the court may find that they have acted improperly — and in serious cases, remove them from the role.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au

Can an Executor Give Away Estate Property in New South Wales?

When someone is appointed as an executor, they are trusted to manage a deceased person’s estate responsibly. In New South Wales, an executor does not have unrestricted power to give away estate property.

Once probate is granted, the executor gains legal control over estate assets — but only for the purpose of administering the estate and carrying out the deceased’s wishes under the will. This authority is fiduciary in nature and must be exercised in the best interests of the beneficiaries.

An executor may only give away or dispose of estate property if:
• the will expressly authorises it
• all beneficiaries consent, or
• the Supreme Court of New South Wales approves the action

Giving away estate property without proper authority may amount to a breach of the executor’s legal duties and can expose the executor to personal liability.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]

Can an Executor Change a Will in New South Wales?
An executor is responsible for managing a deceased person’s estate and ensuring the will is carried out according to New South Wales law. But can an executor actually change a will?

The Executor’s Role
An executor must act in the best interests of the beneficiaries and follow the testator’s wishes as expressed in the will. This fiduciary duty requires the executor to act honestly, diligently, and without personal gain.
Their responsibilities include collecting the estate’s assets, paying debts and liabilities, and distributing the remainder in accordance with the will and the Succession Act 2006 (NSW).

Can the Will Be Changed?
In most cases, an executor cannot alter the terms of a will. However, if all beneficiaries agree, the estate’s distribution may be modified through a Deed of Family Arrangement.
This legal document allows beneficiaries to agree to redistribute their entitlements — for example, if one family member wishes to give part of their inheritance to another. Any beneficiary whose share is reduced must give informed, written consent.

When Distribution Differs from the Will
Even when the will itself is not changed, the distribution of an estate may differ for practical or legal reasons, such as:
• A beneficiary passing away before the testator – Under the Succession Act 2006 (NSW), a gift to a deceased beneficiary usually lapses unless the will provides otherwise.
• Estate debts or liabilities – Assets may need to be sold to pay debts before beneficiaries receive their inheritance.
• Vague or unclear wording – If the will’s instructions are uncertain, the executor may need to seek guidance from the Supreme Court of New South Wales.

If the Executor Does Not Follow the Will
Executors must act lawfully and in accordance with the will. If a beneficiary believes the executor is acting improperly, they can:
• Request to inspect the will or estate accounts;
• Apply to the Supreme Court to compel proper administration; or
• Seek to remove the executor in cases of serious misconduct.

Key Point
An executor’s duty is to carry out the will, not change it. Any alteration must be agreed upon by all beneficiaries or arise from legal necessity.
If you are an executor or beneficiary seeking advice on an estate matter, our team at NSW Probate can assist you in understanding your rights and obligations.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au

What Is Testamentary Intention in NSW?
To be valid, a will in NSW must clearly show testamentary intention — meaning the person intended the document to be their final will.

What counts as intention?
A will usually shows this through wording like “This is my will.”
But intention can also be shown through how the document is written or stored.

Informal documents
Under the Succession Act 2006 (NSW), the Court can accept informal documents — such as handwritten notes or digital files — if they show testamentary intention.
This can be done, but it often leads to delays, extra costs, and stress for families.

Why it matters
Clear testamentary intention:
• speeds up probate
• reduces disputes
• ensures your wishes are followed

The safest option
Have your will professionally drafted and properly signed.
It’s the best way to ensure your intentions are legally recognised and your loved ones are protected.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au

Can A Testator Forestall A Challenge?
For many people making a will—especially those who are elderly or living with cognitive or psychological conditions—concerns often arise about whether their will might later be contested. Fortunately, there are proactive steps a testator can take to reduce the risk of a challenge based on testamentary capacity.

Use a Solicitor
One of the most effective safeguards is to have the will drafted by a solicitor rather than relying on a DIY will kit or informal document. Solicitors are professionally bound to assess capacity and will not accept instructions if they have doubts about a client’s ability to make rational decisions about their estate. Because of this, courts generally regard a solicitor-prepared will as strong evidence that the will-maker had capacity.

Obtain Medical Evidence
If there is any likelihood of dispute due to age, illness, or disability, the testator can also arrange a medical assessment at the time of signing the will. A doctor’s written report confirming capacity can later serve as persuasive evidence if the will is challenged.
Together, professional legal drafting and contemporaneous medical evidence provide powerful protection against claims of incapacity, giving the will-maker greater confidence that their final wishes will be upheld.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au

Under the Uniform Civil Procedure Rules 2005 (NSW), the court has broad discretion to award legal costs at any stage of a proceeding. However, costs are most commonly determined after the case has concluded, once the court has assessed the outcome and the conduct of the parties throughout the matter.

This approach allows the court to decide fairly who should bear the costs—whether they be paid by one party, shared between parties, or drawn from the estate itself.

In estate litigation, cost orders can significantly affect beneficiaries and executors alike. Seeking legal advice early can help you understand your potential exposure and protect your position in any dispute.

Contact us today:
Phone: 02 9167 2770
Email: [email protected]
Website: www.nswprobate.com.au