Applying to have Accounts Passed and Applying for Commission

  1. The obligation to keep accounts​
  2. Filing accounts​
  3. When you may be required to file accounts​
  4. Commission​
  5. Making an application to pass probate accounts and applying for commission​
  6. Instructions for completing application templates​
  7. Notice of filing accounts​
  8. Objection to accounts​
  9. Notice of Motion for filing accounts​
  10. Passing accounts​
  11. Assessing commission​
  12. Filing your application with the Court​
  13. Processing your application​
  14. Forms​



1. THE OBLIGATION TO KEEP ACCOUNTS​

If you are an executor or administrator, you have a duty to:

  • protect the estate and collect the assets of the deceased,
  • pay the funeral and testamentary expenses and any debts of the deceased, and after that
  • distribute the estate in accordance with the terms of the will or the law in relation to intestacy. 

Every executor or administrator is under a duty to keep a record of how they administer the estate (probate accounts) and to report to the beneficiaries. In most estates it is not necessary for the probate accounts to be filed at the Court or for them to be passed (or approved) by the Court. 


Passing of probate accounts is a process by which a registrar checks the accounts and verifies that they accurately reflect how the executor or administrator has managed the estate, and that it is in accordance with the terms of the will (if applicable) and the relevant law.


2. FILING ACCOUNTS​

Probate accounts can be filed at the Court and will be placed on the relevant file. Such accounts can be inspected by beneficiaries. There is no filing fee for simply filing the probate accounts. There is no prescribed form for how probate accounts need to be set out, and the format that is used in a particular case will depend on the nature and complexity of the estate.

Templates

A suggested template for preparing accounts, particularly if those accounts may need to be passed, is included later in this fact sheet. The probate accounts can be verified by the executor or administrator swearing an affidavit that the accounts are true and correct. A precedent form for an affidavit verifying accounts where the executor or administrator is not applying to pass the accounts is also included later in this fact sheet.

Verified accounts

The Court may order that verified probate accounts be filed if:

  • the executor or administrator is a creditor of the estate of the deceased, or
  • the executor or administrator is the guardian of a minor who is a beneficiary, or
  • the whole or a substantial part of the estate passes to one or more charities or public benevolent institutions, or
  • the Court determines that it is appropriate that accounts should be filed in a particular case.


It may also be prudent for an executor or administrator to file probate accounts if there is expected to be a dispute in relation to how the estate has been managed.

In addition to ordering that verified probate accounts be filed, the Court can also make an order that those accounts be passed. As a matter of practice, the Court does not usually require accounts to be passed unless there has been a request by a beneficiary, or the executor or administrator is applying for commission.

If the administration of the estate takes more than one year it may be appropriate to prepare and file interim accounts for the first 12 months (from the date of death of the deceased) and to prepare and file separate accounts for later periods of time (normally each covering the next 12-month period). Separate applications can be made for commission in relation to the work covered by each of the separate sets of accounts.


3. WHEN YOU MAY BE REQUIRED TO FILE ACCOUNTS​


An order for the filing of verified accounts can be made at the time a grant of probate is made. If such an order is made, a notice that verified accounts need to be filed, or filed and passed, will be sent out at the time the grant is sent to the executor or administrator.

The normal time to file accounts is within 12 months of the grant being made. In most simple estates it is expected that the estate will be fully administered within this 12-month period, although this will depend on the nature of the estate and the terms of the will. The Court can make orders extending the time to file accounts or, if appropriate, extend the time to file accounts till further order of the Court. The Court can also make orders dispensing with the requirement to file further accounts.

The Court can make an order for the filing, or for the filing and passing, of accounts after a grant has been made. This will usually be done if an application is made by a beneficiary.


4. COMMISSION​

An executor or administrator is generally entitled to apply for commission to compensate them for the time and effort (or "pains and trouble") involved in administering an estate. An executor who receives a legacy under the will as a condition of taking on the role may not be entitled to apply for commission. Generally, if there is more than one executor or administrator, the executors or administrators will make a joint application for commission, however, an application can be made by one of several executors or administrators. If an application is made to the Court for commission, the accounts for the period for which commission is being applied for must be passed.

 Executors and administrators who believe that they are entitled to apply for commission are encouraged to consult with the beneficiaries who may be affected if commission were to be allowed. There is no need to get approval from the Court for an executor or administrator to be paid a fair amount for their time and effort, if all the affected beneficiaries (normally the residuary beneficiaries) are able to agree that the executor or administrator should be paid an amount by way of commission. If an executor or administrator is required to apply to pass the accounts, and for commission, then the proper legal costs incurred, which can be substantial, will normally be paid from the estate, reducing the residual beneficiaries' share of the estate.

The process of applying for commission will take some time, both for the executor or administrator in preparing the relevant documentation, and for the Court to consider the application. This may delay the final distribution of the estate. As such, it will generally be in the interest of both the executor or administrator and the beneficiaries if the issue of commission can be resolved without having to apply to the Court.

Applications for the passing of accounts and seeking commission are usually dealt with in the absence of the parties by a Registrar.


5. MAKING AN APPLICATION TO PASS PROBATE ACCOUNTS AND APPLYING FOR COMMISSION​

This information is not intended to be a substitute for legal advice. This fact sheet is designed to help you with a simple application to pass accounts (and to apply for commission). The form of Notice of Motion (Form 20 (version 3), UCPR 18.1 and 18.3), included with this fact sheet, assumes you are appearing without a solicitor and that the applicant is the contact person.

If you are applying to pass accounts you should use the affidavit template (SCR Part 78 Div 11) provided. If you are simply filing verified accounts you should use the second affidavit template (SCR Part 78 Div 11 (2nd)).


6. INSTRUCTIONS FOR COMPLETING APPLICATION TEMPLATES​

The information in this fact sheet does not cover all the various situations that can arise, and the information and documents that may be required in the application may vary from case to case. The forms in this fact sheet are intended to be downloaded and edited to insert relevant information.  You should delete any instructions or inapplicable words before printing.


  1. ​Words appearing in shaded grey are fields. Click on the relevant field to enter the relevant information.
  2. Paragraphs or words appearing after a "#" are optional. If they are not applicable in relation to the application you are making, the relevant paragraph or words should be deleted.
  3. Words appearing in italics are instructions as to information that should be inserted at that part of the form, and should be overwritten with the relevant information.
  4. The affidavit will need to be adapted as appropriate if it is being sworn by more than one person.
  5. Ensure that in the final version of the affidavit all paragraphs are numbered from 1, that any irrelevant paragraphs have been deleted, and that any additional information required for the particular case has been added.
  6. The affidavit is an important document and you should check that it includes all relevant information and makes sense before you save and print the document.
  7. It is not necessary for the annexed documents to have completed annexure notes provided they are clearly identifiable.
  8. If the Statements of Account or other documents are bulky and it is not practical for them to be attached to the affidavit, they should be made exhibits to the affidavit, and the affidavit adapted appropriately.
  9. The affidavit will need to be sworn before a justice of the peace or solicitor who will need to complete a certificate identifying the deponent.
  10. You cannot currently submit these forms electronically. They must be printed out, signed and witnessed as necessary, and lodged at or posted to the Registry Office (with payment of the filing fee if applicable).

If you are uncertain as to whether accounts should be passed, or if you are uncertain as to whether you are entitled to apply for commission, or if the passing of accounts or a claim for commission is likely to be contentious it is recommended that you seek legal advice from a qualified solicitor.

If you have difficultly completing the forms or need further guidance, please contact us by emailing sc.probate@courts.nsw.gov.au  Registry staff can assist you with procedural advice, but are unable to provide you with legal advice.


7. NOTICE OF FILING ACCOUNTS​

At least 14 days before you file your application to pass accounts (and for commission) you will need to publish a notice of your intention to have the accounts passed (and to apply for commission if applicable). The notice is published on the Online Registry. A fee is payable. For further information about lodging this notice and to publish the notice please see https://onlineregistry.lawlink.nsw.gov.au/content/probate-notices


​​​8. OBJECTIONS TO ACCOUNTS​​

Any person, but usually a beneficiary or creditor, may file a notice that they object to the accounts being passed, and/or to a claim for commission. If a person files an objection to the accounts they will be added as a defendant to the proceedings and they may be asked to provide submissions in relation to why they object to either the passing of the accounts, or to any allowance for commission.


9. NOTICE OF MOTION​

FILING ACCOUNTS

An application to have accounts passed (and for commission) is made by filing a Notice of Motion.  A filing fee is payable. An affidavit in support is required to which is annexed or exhibited the Statement of Accounts for the Estate. The affidavit will need to verify that you have published a notice of filing accounts at least 14 days earlier. If you are seeking commission you should include in the affidavit a summary of the steps that have been taken in administering the estate (particularly insofar as that may not be apparent from the accounts themselves), setting out any specific complications or difficulties that were encountered and any other matters that you think may be relevant in determining the rate of commission that should be allowed.

The Statement of Accounts for the Estate must provide:

  • A proper account of any income/profit received by the estate.   
  • A proper account of monies disbursed by the estate, including any receipts from the beneficiaries of the estate.
  • An account of any asset realised, including any receipts from the beneficiaries of the estate. 
  • An account of any assets realised and subsequently reinvested.
  • An account of any assets transferred, including any in specie distribution, for example, when cash is not readily available and allocating the physical asset is the better alternative. Receipts from the beneficiaries of the estate must be included.
  • An account of any part of the estate that remains undisbursed/assets unrealised. 
  • The receipts and statements of transferred assets and unrealised assets should account for each asset shown in the inventory of property.
  • If any asset loss has occurred.
  • Any funds expended on professional assistance such as a solicitor , accountant, valuer or real estate agent, and any authority to pay them. 
  • A reconciliation of the funds held as at the date of filing the accounts.


Please note that if you are filing the first set of accounts for the estate you must commence the account ledgers from the date of death.  


​10. PASSING ACCOUNTS:  WHAT CAN BE ALLOWED OR DISALLOWED AND WHAT EVIDENCE IS REQUIRED​


The Registrar may, before passing accounts, disallow any disbursement in part or in whole and require the executor or administrator to reimburse the estate for the amount disallowed (Section 85 (4) Probate and Administration Act).

In proceedings to pass accounts, the registrar cannot determine issues such as whether:

  • assets form part of the estate,
  • assets have been under or overvalued, or
  • assets have been properly accounted for, or
  • something else should be in the accounts. 


These are matters appropriate to an administration suit such as the taking of accounts in Equity under Part 46 or Part 54 of the Uniform Civil Procedure Rules (UCPR).

The bills for all professional work must be provided. The Registrar will verify that the bills do not include charges for non-professional work that is executorial in nature. The Registrar will assess a reasonable amount that should be allowed for the professional work that has been undertaken.

Receipts for any distributions to beneficiaries, including any assets transferred in-specie to a beneficiary, must be provided.

Bank statements showing the closing balance as at the end of the accounts must be provided.

The Registrar may require such additional receipts or other evidence of transactions shown in the accounts as may be appropriate.

Costs relating to preparing and passing the accounts and in relation to the application for commission should not be included in the accounts, as such costs will be assessed separately by the Registrar when the order passing the accounts and allowing commission is made.


11. ASSESSING COMMISSION​

In determining what should be allowed for commission, the Registrar will consider all relevant matters including:

  • the size and complexity of the estate,
  • the complexity of the terms of the will or scheme of distribution under the will,
  • the degree of promptness, efficiency and diligence shown by the executor or administrator in completing tasks,
  • the number of routine and complex tasks to be undertaken to disburse the estate,
  • the amount of work carried out and time spent,
  • the amount of responsibility involved, which may be ongoing,
  • problems encountered in the course of administering the estate,
  • the number of executors or administrators sharing the load of managing the estate.

Commission can be calculated as a lump sum or as a percentage rate.

The following ranges of rates of commission are a guide as to what may be allowed. The actual rate that will be allowed is discretionary and will depend upon the circumstances of the case:

  1. between 0.25% to 1.25% of the value of the assets transfers in specie,
  2. between 0.5% to 2.5% on the income on capital realisations, and 
  3. between 1% to 5% on income collections. 


FURTHER INFORMATION

The rules in relation to applications to pass accounts and for commission are set out in Part 78 Division 11 of the Supreme Court Rules. The rules can be found here

The Probate and Administration Act can be found here

The Schedule of Court Fees can be found here

The following judgments provide some guidelines in relation to application for commission:


12. FILING YOUR APPLICATION WITH THE COURT​

  • All applications must be filed at the Supreme Court of New South Wales Registry, either in person or by post.
  • Make sure you have all the correct documentation, including the completed forms.
  • Your filing fee. The fee can be paid by cheque, money order, cash or via credit card or EFTPOS facilities.


13. PROCESSING YOUR APPLICATION​

​If further information is required before the accounts can be passed the Registrar will raise a requisition asking you to provide additional information or documentation.

14. FORMS​

UCPR 18.1 and 18.3

NOTICE OF MOTION FOR ORDER PASSING ACCOUNTS AND FOR COMMISSION (delete if not applying for commission)

COURT DETAILS
CourtSupreme Court of New South Wales
DivisionEquity
ListProbate
RegistrySydney
Case numberWrite the case number
TITLE OF PROCEEDINGS
The estate of Write the full name of the deceased
Late of: Write the suburb or city where the deceased lived
FILING DETAILS
Person seeking ordersWrite the name of the applicant(s) Executor or Administrator
Contact name and telephoneWrite the name of the contact applicant Write the contact telephone number
Contact emailWrite a contact email address if you have one
PERSON AFFECTED BY ORDERS SOUGHT
The estate of Write the full name of the deceased 
HEARING DETAILS

This motion is to be dealt with in chambers in the absence of the parties.


 


ORDERS SOUGHT

An order passing the accounts of the administration of the estate of Write the full name of the deceased from date to date.

  1. #An order allowing commission.
  2. The costs of and incidental to the filing and passing of the accounts #and of the application for commission.
  3. Such further other orders as the Court thinks necessary
SIGNATURE
Signature of or on behalf of person seeking orders if not legally represented 
CapacityApplicant(s)
Date of signatureWrite date signed


SCR Part 78 Div 11

AFFIDAVIT VERIFYING ACCOUNTS

(in support of application to pass accounts)

COURT DETAILS
CourtSupreme Court of New South Wales
DivisionEquity
ListProbate
RegistrySydney
Case numberWrite the case number
TITLE OF PROCEEDINGS
The estate of Write the full name of the deceased
Late of: Write the suburb or city where the deceased lived
FILING DETAILS
Person seeking ordersWrite the name of the applicant(s) Executor or Administrator
Contact name and telephoneWrite the name of the contact applicant Write the contact telephone number
Contact emailWrite a contact email address if you have one


 

AFFIDAVIT
NameWrite the name of the applicant(s) making this affidavit.
AddressWrite the address(es) of the applicants(s) making this affidavit.
OccupationWrite the occupation(s) of the applicant(s) making this affidavit.
DateWrite the date the affidavit is sworn or affirmed (leave blank to be inserted after sworn)

I Write "say on oath" if you will be swearing the affidavit on a bible or other holy book or otherwise write "affirm" :

1.      I am the Write "executor of the will" or "administrator of the estate"  as appropriate of the deceased Write the full name of the deceased, to whom Write "probate" or "administration" was granted by this Court on Write the date the grant was made. 

2.      A notice of intention to make an application to pass accounts #and for commission was published on the Online Registry on Write the date the notice was published.

3.      The attached accounts contain a full, true and just account of all monies I have received in the estate, or which have come into the hands of any person or persons for me and my administration of the same from date to date, and a statement of all assets which have come to my hands as such executor/administrator still unrealised, and a statement of all assets realised and subsequently reinvested and a statement of all assets transferred in specie.

4.      Receipts/evidence for assets transferred in specie to the beneficiaries are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.These annexures are referred to in the accounts.

5.      Receipts/evidence of distributions and for legacies to the beneficiaries are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

6.      All bills for legal professional costs and charged for in the accounts are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

7.      #All bills for professional costs (other than legal fees) and charged for in the accounts are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

8.      #Settlement statements pursuant to the sale of any real estate are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

9.      #Any legal/accountancy bills for work done during the accounts and not charged for in the accounts are annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

10.   Evidence of the balance held at the close of accounts is annexed at Insert a letter or number to identify these documents to Insert a letter or number to identify these documents.

#The following paragraphs should be included if you are applying for commission. 

11.   The assets of the estate that were administered during the period of these accounts were:

List all the assets. Add additional lines for each asset.
 
 
 

12.   The duties that I undertook in relation to the administration of the estate during the period of these accounts were:

List all the duties undertaken providing details of any unusual complications or complexity. Add additional lines as required.
 
 
 

13.   Under the will I have received no personal benefits.

14.   The assets as yet unrealised and the reason(s) for such non-realisation are:

List all the unrealised assets and for each the reason for non-realisation. Add additional lines as required.
 
 
 

15.   I have employed the following professionals:

List the professionals you have engaged and the work that they have undertaken.
 
 
 

16.   Include any additional information that may be relevant in determining the amount of commission that should be allowed.

17.    I have served notice of my intention to have these accounts passed and that I am applying for commission on the following beneficiaries:

 List the beneficiaries who have been served notice. 
   
   
   



#SWORN #AFFIRMED at
Delete the option that does not apply: 

Write the name of the suburb the affidavit is sworn or affirmed at
Signature of deponentThe person who made the affidavit must sign in front of the prescribed witness
Name of witnessWrite the full name of the prescribed witness
Address of witnessWrite the address of the prescribed witness
Capacity of witness [#Justice of the peace #Solicitor #Barrister #Commissioner for affidavits #Notary public] Select one

[The witness must select one from options 1 and 2 to verify the identity of the person making the affidavit.]  And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):

1.      #I saw the face of the deponent. [OR, delete whichever option is inapplicable]

#I did not see the face of the deponent because the deponent was wearing a face covering, but I am satisfied that the deponent had a special justification for not removing the covering.1

2.      #I have known the deponent for at least 12 months. [OR, delete whichever option is inapplicable]

#I have confirmed the deponent's identity using the following identification document:

 

 

Identification document relied on (may be original or certified copy)2

Witness must specify what type of identification document they sighted to confirm the identity of the person who made the affidavit


Signature of witness
The prescribed witness signs here

 

1 [The only "special justification" for not removing a face covering is a legitimate medical reason (at April 2012).]

2 ["Identification documents" include current driver licence, proof of age card, Medicare card, credit card, Centrelink pension card, Veterans Affairs entitlement card, student identity card, citizenship certificate, birth certificate, passport or see Oaths Regulation 2011 or JP Ruling 003 - Confirming identity for NSW statutory declarations and affidavits, footnote 3.]


SCR Part 78 Div 11 (2nd)

AFFIDAVIT VERIFYING ACCOUNTS

COURT DETAILS
CourtSupreme Court of New South Wales
DivisionEquity
ListProbate
RegistrySydney
Case numberWrite the case number
TITLE OF PROCEEDINGS
The estate of Write the full name of the deceased
Late of: Write the suburb or city where the deceased lived
FILING DETAILS
Person seeking ordersWrite the name of the applicant(s) Executor or Administrator
Contact name and telephoneWrite the name of the contact applicant Write the contact telephone number
Contact emailWrite a contact email address if you have one


 


AFFIDAVIT

NameWrite the name of the applicant(s) making this affidavit.
AddressWrite the address(es) of the applicants(s) making this affidavit.
OccupationWrite the occupation(s) of the applicant(s) making this affidavit.
DateWrite the date the affidavit is sworn or affirmed (leave blank to be inserted after sworn)

I Write "say on oath" if you will be swearing the affidavit on a bible or other holy book or otherwise write "affirm"

  1. I am the Write "executor of the will" or "administrator of the estate"  as appropriate of the deceased Write the full name of the deceased, to whom Write "probate" or "administration" was granted by this Court on Write the date the grant was made.

The attached accounts contains a full, true and just account of all monies I have received in the estate, or which have come into the hands of any person or persons for me and my administration of the same from date to date, and a statement of all assets which have come to my hands as such executor/administrator still unrealised, and a statement of all assets realised and subsequently reinvested and a statement of all assets transferred in specie.

[The witness must select one from options 1 and 2 to verify the identity of the person making the affidavit.]  And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):

3.      #I saw the face of the deponent. [OR, delete whichever option is inapplicable]

#I did not see the face of the deponent because the deponent was wearing a face covering, but I am satisfied that the deponent had a special justification for not removing the covering.1

4.      #I have known the deponent for at least 12 months. [OR, delete whichever option is inapplicable]

#I have confirmed the deponent's identity using the following identification document:

 

 

Identification document relied on (may be original or certified copy)2

Witness must specify what type of identification document they sighted to confirm the identity of the person who made the affidavit


Signature of witness
The prescribed witness signs here

1 [The only "special justification" for not removing a face covering is a legitimate medical reason (at April 2012).]2 ["Identification documents" include current driver licence, proof of age card, Medicare card, credit card, Centrelink pension card, Veterans Affairs entitlement card, student identity card, citizenship certificate, birth certificate, passport or see Oaths Regulation 2011 or JP Ruling 003 - Confirming identity for NSW statutory declarations and affidavits, footnote 3.]
The Estate of the late (name)

Statement of receipts and disbursements of accounts

RECEIPTS

No. of itemDate receivedFrom whom receivedDescriptionAmount received
CapitalIncome
1.                  
2.                  
3.                  
4.                  
5.                  
6.                  
7.                  
8.                  
9.                  
10.               
11.               
12.               
13.               
14.               
15.               
16.               
17.               
18.               
19.               
20.               

DISBURSEMENTS

No. of itemDate paid To whom paid Description Amount paid
CapitalIncome
1.            
2.                  
3.                  
4.                  
5.                  
6.                  
7.                  
8.                  
9.                  
10.               

ASSETS REALISED

Item above Affidavit reference Detail of asset Proceeds
CapitalIncome
     
     
     
     
     

ASSETS REALISED AND SUBSEQUENTLY REINVESTED

Item above Affidavit reference Detail of asset Proceeds
CapitalIncome
     
     
     

ASSETS TRANSFERRED

Item above Affidavit reference Detail of asset Proceeds
    
    
    
    

ASSETS UNREALISED

Item above Affidavit reference Detail of asset Balance
    
    
    


ESTATE OF THE LATE (name of deceased)

RECONCILIATION OF FUNDS HELD AS AT DATE OF FILING ACCOUNTS

Receipts Capital    
PLUS Receipts income   
Balance 1   

 

Disbursements Capital   
Disbursements income   
Balance 2   

Balance 1 less Balance 2

Funds held by (name of bank or trust account) TOTAL
  

# This total should marry up with the evidence of the balance held at the close of accounts.

Balance held at close of accounts

Annexed at insert dateTOTAL
(total should be the same amount as above) 

​ ​