Rights of a beneficiary named in a Will – NSW

Beneficiaries are those listed to receive a gift in a deceased’s Will.  The executors – who are often also beneficiaries – have a duty to uphold the terms of the Will.

Copy of the Will

Beneficiaries are entitled to a copy of the deceased’s Will.   Perhaps stating the obvious, but this is applicable only after the death of the deceased, not before.

Anyone entitled to a copy of the Will is also entitled to a copy of a revoked Will or a document purporting to be a Will of the deceased.

Assets of the Deceased

A grant of probate is usually required before assets can be distributed to the beneficiaries.  However, the need for probate depends on the value of the deceased’s assets.

Probate is the process whereby the executors apply to the Supreme Court to confirm the validity of the deceased’s last known Will.   An application for Probate also requires the executors to quantify the value of the estate, both assets and liabilities as at the date of death.

Once probate has been granted, a probate document is issued by the Court with a copy of the Will and a list of the assets.

A significant beneficiary can ask for a copy of the Probate document from the Estate’s solicitor.

What can a beneficiary find out and do?

Every Will, every estate and every executor/s is different.   Mix this with remaining family dynamics and issues makes no two matters the same.

It is the executor’s role with the assistance of a solicitor, to apply for probate and distribute the estate to the beneficiaries in accordance with the Will.  Generally, the beneficiary, unless they are also an executor, has little involvement in the process.

Major beneficiaries, like a spouse or an adult child, of the deceased can make enquires or have a say where, for example:

  • There is an asset that a beneficiary would like in lieu of their share of the estate;
  • They wish to ensure the executor is acting properly and to question the expenses of the estate;
  • To ascertain whether all the beneficiaries may agree to a variation to the Will;
  • There has been delay and a beneficiary wants an outline of the proposed time frames to finalise the estate;
  • They want information about the relationship the deceased had with a named beneficiary for example, a de-facto or second relationship.
  • They want more transparency with the administration of the estate.

A beneficiary can apply to the Court to have the executor pass accounts of the estate (similar to an audit).  This will determine whether expenses of the estate were fair and reasonable.

In worst cases, an executor/s can be removed and replaced by the Court for say, excessive delay, in-action or serious misconduct.

Time frames

  • Six months from the date of death is the time frame to apply for probate with the NSW Supreme Court.
  • The time it takes to grant probate depends on how busy the Court is and whether it has any questions. It can take about four weeks but can take weeks longer.
  • A well-advised executor waits at least for six months from the date of death to distribute gifts and assets to beneficiaries;
  • An executor has twelve months from the date of death to pay debts and any legacies. However, this depends on the status of the estate at the expiration of this period.  The estate may not ready to distribute for any number of reasons.
  • An eligible person has twelve months from the date of death to make a claim on the Estate. A beneficiary may be an eligible person depending on the relationship they had with the deceased.  The Court maintains strict compliance with this time frame.

Benefit of legal advice for a beneficiary

Beneficiaries try to get answers from executors directly often without constructive results.

Emotion and friction can be removed when a solicitor acts for a beneficiary to communicate with the solicitor for the Estate to protect the beneficiary’s interest and ensure the estate is administered in a timely manner in accordance with the terms of the Will.

For further information about the probate process and estates generally, see the Supreme Court website at Information about probate

This information is general in nature and cannot be relied upon as legal advice.