Wills & Estates Lawyers Parramatta

Where wills and estates matters are handled if you live in Parramatta or Western Sydney

If someone close to you has died, the first practical question is where to go. The answer surprises many people in Parramatta, Blacktown, Penrith, Liverpool, the Hills, Auburn and Merrylands: probate is not handled by a local court. Every grant of probate or letters of administration in NSW is issued by one court, the Supreme Court of NSW, and its registry is on Level 5 of the Law Courts Building, 184 Phillip Street, Sydney.

Since 1 August 2023 most uncontested applications must be filed online through the NSW Online Registry, which is also where the required notices are published. The original will still has to be filed with the Court, which keeps it.

Disputes, such as a challenge to a will or a claim for a larger share of an estate, are case managed in the Probate and Family Provision List of the Supreme Court's Equity Division.

Questions about a living person who can no longer make their own decisions go to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), which has its own registry at Level 6, John Maddison Tower, 86-90 Goulburn Street, Sydney.

How wills and inheritance law works in New South Wales

The main law is the Succession Act 2006 (NSW). Section 6 sets out what makes a will formally valid: it must be in writing and signed by the will-maker, and the signature must be made or acknowledged in front of two or more witnesses who are present at the same time, at least two of whom then sign in the will-maker's presence. A beneficiary who witnesses the will can lose their gift.

A document that misses those rules may still be accepted under section 8 as an informal will, but only through a court application with evidence that the person intended it to be their will.

Under section 12, marriage automatically revokes (cancels) a will unless it was made in contemplation of marriage. Under section 13, divorce does not cancel the whole will, but it does cancel any gift to your former spouse and their appointment as executor, trustee or guardian, unless the will says otherwise. Do not assume that separation alone has changed your will.

If there is no valid will, the person has died intestate and the Act decides who inherits. A spouse or de facto partner comes first, and takes the whole estate unless the deceased had children from another relationship. In that case the spouse receives the personal effects, a statutory legacy (a sum set under the Act and adjusted over time) and half of what is left, and the children share the rest. With no spouse, the order runs through children, parents, siblings, grandparents, then aunts, uncles and first cousins, and finally the NSW Government.

Applying for probate or letters of administration in NSW

Probate is the Supreme Court's confirmation that a will is valid and that the executor (the person named to carry it out) can deal with the estate. If there is no will, the equivalent is letters of administration, most often sought by the spouse or de facto partner. The Court will only make a grant if the deceased left assets in NSW. Not every estate needs one: property owned as joint tenants passes automatically to the survivor, and banks and other asset holders set their own requirements. Real estate in the deceased's sole name, or a share held as tenants in common, does need a grant.

A notice of intended application is first published on the NSW Online Registry, and at least 14 days' notice must be given before the summons (the application document) is filed. The application is supported by an affidavit (a sworn statement) from the executor, the death certificate, the original will and any codicils (formal amendments). For letters of administration you also need the consent of the other people entitled to share, or you must serve them with notice; if consents cannot be obtained the Court can require an administration bond.

The application is expected within 6 months of the death; if it is later, the delay must be explained on affidavit. The Court charges a filing fee that is scaled to the gross value of the estate.

Contesting a will in NSW: family provision claims and validity challenges

A will can be disputed in two ways. The first is a challenge to validity, for example that the will-maker lacked testamentary capacity (the mental ability to make a will) or was pressured. A person with that concern can file a caveat, a formal notice that stops a grant being issued and stays in force for 6 months from filing.

The second is a family provision claim under Chapter 3 of the Succession Act 2006. The will may be valid, but an eligible person says it did not adequately provide for their proper maintenance, education or advancement in life. Eligible persons are listed in section 57: the deceased's spouse, de facto partner, child (including an adopted child), former spouse, a dependant who was a grandchild or a member of the household, and a person in a close personal relationship with the deceased at the date of death.

The claim must be made in the Supreme Court within 12 months of the date of death. The clock runs from the death, not the grant, and a late claim needs an extension of time. In limited circumstances it can also reach property moved out of the estate before death, known as notional estate.

Family provision cases are referred to mediation before a hearing. Matters filed on or after 17 July 2024 must follow the Court's Practice Note SC EQ 07, which generally requires a disclosure statement. An unsuccessful applicant can be ordered to pay the other side's costs.

Enduring powers of attorney and enduring guardianship in NSW

An enduring power of attorney, made under the Powers of Attorney Act 2003 (NSW), lets someone you choose manage your financial and legal affairs, and it keeps working if you lose capacity. An appointment of enduring guardian, made under the Guardianship Act 1987 (NSW), covers personal decisions: where you live, the services you receive and the health, medical and dental care you are given.

An enduring power of attorney must be witnessed by a prescribed witness, such as a solicitor, barrister or NSW Local Court registrar, who certifies that they explained the document to you and that you appeared to understand it. If your attorney will deal with NSW real estate, the document must be registered with NSW Land Registry Services. A Local Court registrar, including at Parramatta Local Court, 12 George Street, can witness these documents if you book ahead and complete the form first, but cannot give legal advice or witness a complex clause.

If you are worried an attorney is misusing their role, NCAT's Guardianship Division can review an enduring power of attorney and vary or revoke it. It can also review an enduring guardianship appointment and confirm, vary or revoke it.

How NSW differs from Victoria and Queensland

If family or assets are spread across states, the biggest trap is the family provision deadline. In NSW it is 12 months from the date of death. In Victoria it is 6 months from the grant of probate or letters of administration. In Queensland proceedings must be started within 9 months of the death, and an executor there can generally distribute after 6 months if no notice of a claim has been received.

NSW also has its own features, such as the close personal relationship category and notional estate orders. A grant made in another state must be resealed by the Supreme Court of NSW where the deceased owned NSW real estate.