- Probate Accounts: Guidelines (dated 11 January 2021) [pdf/word]
5. MAKING AN APPLICATION TO PASS PROBATE ACCOUNTS AND APPLYING FOR COMMISSION
An application to pass accounts and seek commission is made by filing a motion and accompanying affidavit in the subject probate file. The approved form is UCPR FORM 150.
UCPR Form 150 includes the form of the Notice of Motion and the affidavit which sets out the required categories of information for probate accounts and prompts the supporting documents.
A reconciliation of the funds held as at the date of filing the accounts.
6. COMPLETING UCPR FORM 150
The information and documents that may be required in the application may vary from case to case and the information in the form should be adapted to cover the particular circumstances. You should delete any instructions or inapplicable words before printing UCPR Form 150.
This 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 and have it sworn before a person who may take an affidavit.
If the supporting 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. If there is a large number of documents, they should be presented in a folder that has been indexed and paginated to assist the registrar to locate relevant material.
You cannot currently submit these forms electronically. They must be printed out, signed and witnessed as necessary, and lodged at or posted to the Supreme Court Registry (with payment of the motion filing fee if applicable).
If you have difficultly completing the forms or need further guidance, please contact us by emailing email@example.com Registry staff can assist you with procedural advice only and are unable to provide you with legal advice (for example the content of your affidavit).
7. NOTICE OF FILING ACCOUNTS
At least 14 days before you file your motion 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:
- prepared on a cash (not accrued) basis and entries to be identified in the accounts as either capital or income (see format in UCPR Form 150 affidavit).
- A proper account of any income/profit received by the estate from the date of death of the testator.
- A proper account of monies disbursed by the estate from the date of death of the testator, 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.
8. OBJECTIONS TO ACCOUNTS
Any person, but usually a beneficiary or creditor, may object to the accounts being passed, and/or to a claim for commission. An objection does not give the objecting party the ability to make any submissions regarding the accounts until the accounts are at the stage to be passed.
Objections are made by:
Objecting parties should acquaint themselves with the procedure set out in Parts 2A and 2B of the Probate Accounts Guidelines.
- Filing a notice of intended objection to the passing of accounts or the allowance of commission prior to the commencement of proceedings for the passing of accounts (see Part 78 Rule 78 of the SCR); or
- Probate Accounts: Guidelines (dated 11 January 2021) [pdf/word]
9. PASSING ACCOUNTS: WHAT CAN BE ALLOWED OR DISALLOWED
Before passing the accounts the Registrar may disallow any disbursement in part or in whole and require the executor or administrator to reimburse the estate for the amount disallowed (see section 85 (4) of the PAA).
In proceedings to pass accounts, the Registrar cannot determine issues such as:
- Whether assets form part of the estate,
- Whether assets have been under or overvalued, or
- Whether assets have been properly accounted for or not, or
- Other issues regarding the administration of the estate.
These are matters appropriate to a separate "administration suit" in the Equity Division of the Supreme Court (for example an appropriate application by summons 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. If it is found that the bills include non-professional work, the executor may be ordered to reimburse these amounts to the estate. The Registrar will also moderate a reasonable amount that can be paid from the estate for the professional work that has been undertaken for the estate.
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 and if appropriate, may raise a requisition for further information.
Costs relating to preparing and passing the accounts and in relation to the application for commission should not be included in the accounts or paid from the estate before the accounts are passed. Such costs will be fixed separately by the Registrar as part of the order passing the accounts and allowing commission.
10. DETERMINING COMMISSION
If an executor or administrator is seeking commission, information and evidence in support of commission should be included in a separate affidavit. This information may include a summary of the steps taken in administering the estate, setting out any specific complications or difficulties that were encountered and any other matters that you think may be relevant in determining the commission that should be allowed.
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 is discretionary and will depend on the circumstances of each estate. Commission may be awarded as a lump sum or as a percentage rate. The following ranges of percentages for commission are a guide (only) as to what might be allowed.
- between 0.25% to 1.25% of the value of the assets transfers in specie,
- between 0.25% to 2.5% on the income on capital realisations, and
- between 1% to 5% on income collections.
The Probate Accounts: Guidelines can be found here.
The Court 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:
11. 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 all the correct documentation is included (see UCPR Form 150).
- Include the filing fee. The fee can be paid by cheque, money order, cash or via credit card or EFTPOS facilities.
12. CONSIDERING 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.