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Insights

The passing of a loved one is a very emotional time. However, the complexity and time involved in dealing with their estate can depend largely on whether there is a Will in place.

In the state of New South Wales, if someone dies with a Will, the executor or executors of the estate will be required to bring an application for a grant of probate of the Will with the       Supreme Court of NSW.

A grant of probate is a document that is proof that a Will is legally valid and that the executor appointed under the Will has the legal right to administer the estate.

However, if there is no Will in place, then the estate will be distributed to beneficiaries according to a predetermined formula under the rules of intestacy set out in the Succession Act (NSW) 2006. It is these beneficiaries that would then have the right to bring an application for letters of administration with the Supreme Court of NSW.

This is a much more complex and costly process then applying for a grant of probate and can cause additional stress and delay for those left behind.

Some of the additional steps required in applying for letters of administration are as follows:

  • Thorough searches for a Will need to be made. This can include searches with solicitors, NSW Trustee and Guardian, financial institutions and through the personal belongings. This evidence will need to be provided to the Court.
  • You need to prove who is entitled to the estate an therefore entitled to apply for administration. This may involve applying for the following certificates:
    • Marriage certificates for all marriages (if the deceased was married or married and divorced).
    • Copies of the decree absolute (if the deceased was divorced).
    • Birth certificate and death certificate for the deceased.
    • Death certificates for the parents of the deceased (if the deceased did not have children or a spouse).
    • Birth certificates for the children of the deceased.
  • You may also need to provide the following additional forms:
    • Consents signed by any beneficiaries who are entitled but not applying.
    • Consents signed by the guardians of any minor beneficiaries who are entitled.
    • The administrator may also need to provide an administration bond to the Court depending on the circumstances of the case.
    • Affidavits in relation to the existence of any de facto relationship (or if the deceased was not in a de fact relationship, evidence to show this).

The above searches and enquiries can become quite difficult if the deceased lived across different states during their lifetime as you will need to deal with different jurisdictions. It can also become difficult if the deceased had limited contact with their family.

The complexity of the application for letters of administration can vary from person to person and the estate may not necessarily pass to those you would have liked the estate to pass to.

To avoid unnecessary costs, stress and delay for your loved ones, it is important to have a Will in place that clearly appoints your executors and beneficiaries.