To help individuals that have a deceased family member who hasn’t made a will or made an invalid one, here’s a guide to applying for letters of administration in NSW.
Each State has its own laws governing the administration of the estate of an intestate person.
In applying letters of administration in NSW, there are applicable laws and regulations. These are the Wills, Probate and Administration Act 1898, the Succession Act 2006, and the Supreme Court Rules 1970 (NSW). Hence, the applicable law and jurisdiction of NSW will apply when the assets of the deceased are in NSW or if they are domiciled in NSW.
Applications are filed at the Probate Registry of the Supreme Court of NSW. In applying letters of administration in NSW, a grant of Letters of Administration will be issued by the Court within 30 days of the application. Additionally, take in mind that this depends on how busy the probate registry is. Also, this may take longer when additional information is required. However, if further information is needed, there will be a request letter sent within 30 days. These requests are called requisitions.
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, there is a need for property distribution. Thus, the deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Furthermore, total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will, but all the beneficiaries have since died. On the other hand, partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate.
Not necessarily.
The main reason for a grant of letters of administration being required is that some organisations which hold assets of the estate will not release them to the administrator for distribution without sighting the grant of representation from the Supreme Court. Hence, you will need to make a list of everything the deceased’s entitlements and owned assets. Then, make contact with the financial institutions concerned to establish whether they require a grant. This will be more relevant for smaller estates. Moreover, larger estates comprising real estate will require a grant representation.
State law allows to appoint an administrator. This individual can administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. Consequently, this person has the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. Also, they have legal authority to act under a court order which is known as the grant of letters of administration.
Section 63 of the Wills Probate and Administration Act 1982 sets out the appointment of the administrator. Thus, the Court can appoint a spouse (including de facto), one or more of the next of kin. Consequently, it can be the spouse together with one or more of the next of kin. If no such person exists or if, in the court’s opinion, the person concerned is not fit to be trusted with the responsibility. Hence, the Court can grant administration to any person it thinks fit.
On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company. Consequently, upon seeing the grant from the Court, the company will register the administrator as the shareholder in place of the deceased. Thus, this will enable the administrator to sell the shares and distribute the proceeds under the intestacy rules discussed below.
The authority of the administrator dealing with the deceased person’s estate needs the Court’s confirmation. This will satisfy institutions who hold the deceased’s assets. Additionally, this will allow the administrator to deal with those assets and will give the administrator some protection from liability in dealing with the estate.
Intestacy occurs frequently in Australia. The aim of the legislation in each State is to produce the same sort of result as if the deceased had made a will or to ensure that the estate vests in a legal personal representative (administrator) to enable a distribution of such assets of the estate to persons entitled to it under the laws of intestacy. Consequently, it identifies the deceased’s closest relatives as the primary beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. Additionally, the rules do not, therefore, take account of individual circumstances. Thus, these rules act as a safety net to protect those who have failed (for whatever reason) to direct what they would like to happen to their assets when they die.
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. This is because of the signing of the intestacy provisions of the Succession Act 2006 into a law in 2020. As a result, the following applies to persons who died after 1 March 2010.
If the intestate dies without a spouse or issue, the distribution pattern is similar to the previous law. However, this excepts that first cousins of the deceased are now entitled to benefit–Pt 4.3, i.e.
Categories of petitioners to the Crown for waiver of its right to the intestate’s estate have been expanded. Consequently, this includes dependents, persons with just or moral claim, organisations (e.g. charities). This can be those whom the intestate might reasonably expect to have made provision and trustees of such persons or organisations s-137.
Yes.
AussieLegal offers a number of legal kits and paralegal services. These kits are specifically designed to help family members make a personal application and save thousands in legal fees. One of the kits aims to help in applying for letters of administration in NSW.
Please see the following link or call us on 1300 728 200 to discuss your situation with one of our consultants:
https://aussielegal.com.au/product/letters-of-administration-au/
