If you are an executor or administrator, you have a duty to:
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.
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.
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.
The Court may order that verified probate accounts be filed if:
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.
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.
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.
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)).
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.
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 firstname.lastname@example.org Registry staff can assist you with procedural advice, but are unable to provide you with legal advice.
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.
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.
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:
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.
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:
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.
In determining what should be allowed for commission, the Registrar will consider all relevant matters including:
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:
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:
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.
UCPR 18.1 and 18.3
This motion is to be dealt with in chambers in the absence of the parties.
An order passing the accounts of the administration of the estate of Write the full name of the deceased from date to date.
SCR Part 78 Div 11
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:
12. The duties that I undertook in relation to the administration of the estate during the period of these accounts were:
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:
15. I have employed the following professionals:
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:
#SWORN #AFFIRMED at Delete the option that does not apply:
[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
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)
I Write "say on oath" if you will be swearing the affidavit on a bible or other holy book or otherwise write "affirm"
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.
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:
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
ASSETS REALISED AND SUBSEQUENTLY REINVESTED
ESTATE OF THE LATE (name of deceased)
RECONCILIATION OF FUNDS HELD AS AT DATE OF FILING ACCOUNTS
Balance 1 less Balance 2
# This total should marry up with the evidence of the balance held at the close of accounts.
Balance held at close of accounts