Find out more about probate records in NSW, where they are stored, who has access to the files, as well as how to get a copy.
When a Supreme court grants probate, the application and supporting documentation is filed with the court registry, the file usually contains a copy of the deceased person’s will and a listing of the assets and liabilities of the deceased person’s estate. Access to these documents is legislated according to the NSW Succession Act 2006. Let’s take a closer look.
What Is A Probate Record?
The documents submitted to the court to support a probate application will become part of the probate record or file. The probate authorises the executors to distribute a deceased estate.
A probate record or letters of administration file will generally contain a detailed list of assets and liabilities of a deceased person, an affidavit from the executor or administrator, and a copy of the probate grant issued by the Supreme Court. The file may contain a death certificate, a witness affidavit, and a copy of the will (depending on the year of death.)
Where Are The Records Located?
Each state and territory in Australia store their wills and probate records, many of which are available to view online. Records have been kept as early as the 1800s.
Probate records issued between 1859-1976 are at the NSW State Archives & Records Department.
Probate records from 1977 to date are stored at the NSW Supreme Court. The Supreme Court registry maintains the register of every grant of probate issued by the court. After the grant is approved, the court retains the documents.
Who Has Access To The Documents?
Before probate, beneficiaries of the deceased estate and other interested persons may wish to view the will and will not always automatically receive a copy. They should request a copy from the executor.
The New South Wales Succession Act states that the person managing the deceased persons estate and controlling the will must supply a copy (at that persons expense) only if they are:
- Named in the will
- Named in an earlier will
- The surviving spouse, de facto partner (of either the same or opposite sex) or child
- Deceased’s parent
- Anyone entitled to a share in the estate, even without a will
- Anyone having a claim against the estate (including a creditor)
- Guardians, trustees or any person committed with the management of the estate (Under the NSW Trustee and Guardian Act 2009)
- Attorneys responsible for enduring power of attorney
- Any other person belonging to a class of people as per NSW succession regulations
Personal identification and proof of eligibility are required.
If there is concern about whether the person requesting access is entitled, under the Succession Act, the person entitled can commence proceedings in the court to have the person responsible for the will to produce it in court.
No one is allowed to see the will of someone if they are still alive, even if they are an eligible person to receive a copy of the will in the event of the person’s death. This includes the individual who holds the Power of Attorney of the person concerned.
Accessing the will after a grant of probate has been issued does not hold the same degree of difficulty as trying to obtain a copy prior. The Probate and Administration Act 1898 states that once probate is granted, the deceased’s will becomes a public record document that anyone is entitled to view or obtain, as long as you pay the applicable fee.
How To Find The Executor?
There are some cases where the beneficiaries do not know who is the executor of the will. In these instances, the beneficiaries should look at the local newspapers in the area where the deceased resided. Often death, funeral or legal notices will be published listing the executor or lawyers contact details. Also, check with the Supreme court for an intention to apply for probate notice.
How To Get A Copy Of Probate Files In New South Wales?
The inventory of property accompanying the probate files can be of singular interest to beneficiaries because it outlines the assets with detailed information regarding their gross value.
The inventory of property can only be made available to executors or administrators of the will, beneficiaries and applicants who have already begun legal proceedings in contested family provision claims.
Once the probate is issued, the beneficiaries are entitled to the exemplification of the grant, which is essentially a certified, sealed, and court authorised copy of the document, which will include a copy of the inventory if they are a person named in the will.
An exemplification can be made through the Supreme court. Such a request will take approximately 14 days, and a fee is applicable.
A prospective claimant wishing to view the inventory to determine the estimated gross value of the deceased estate prior to making a provision claim is not eligible to receive a copy of the probate or inventory documentation as they are not a residual beneficiary. Their only option is to make the provision claim in court, which can be expensive and time-consuming if such proceedings are commenced.
The documents submitted to the court to support a probate application will become part of the probate record or file. A probate record or letters of administration file will generally contain a detailed list of assets and liabilities of a deceased person, an affidavit from the executor or administrator, a copy of the grant of probate issued by the Supreme Court and the will of the deceased person.
Probate records are stored at the NSW State Archives and the Supreme Court.
The New South Wales Succession Act states that the executor managing the deceased persons estate and controlling the will must supply a copy of the will if they are an eligible person.
How Do I Get A Copy Of Probate In NSW?
Probate documents issued between 1859-1976 are located at the NSW State Archives & Records Department at the Western Sydney Records Centre in Kingswood.
Five years after granting probate, the packets are available for public viewing. Access can be obtained by visiting the department’s reading room of the state archive or requesting a copy for a fee.
Probate records from 1977 to date are stored at the Supreme Court. Once the grant of probate is issued, the beneficiaries are entitled to the exemplification of the grant, which is essentially a certified and sealed copy of the document. Application for an exemplification is made through the Supreme court, and a fee is applicable.
Are Wills Public Record In NSW?
The Act states that once probate is granted, the will of a deceased person becomes a public record document that anyone is entitled to view or obtain, as long as the relevant fee is paid. Unlike other documents which may be included in the probate file, including the affidavit of the executor, as they are not part of the public record documents.
How Do You Find Out If Probate Has Been Filed?
Before applying for probate, an executor must lodge an intention to apply for probate notice with the Supreme Court of NSW. Search the court website to check if there was a notice published online.
Probate may not be filed if the estate was of low value, if the person died intestate (without a will), or if the deceased person did not own any properties in NSW.