Overview
The process of estate administration can be a complex process even where a will maker (known as the testator) has made their best efforts in respect of estate planning with a will in place and their superannuation and / or life insurance polices set up with a binding nomination. Helpful background: estate planning explained and an estate planning checklist.
Applying for a Grant of Probate
In these situations, and where there is property or substantive cash amounts in the estate, the executor (the person nominated by will maker to administer their estate) will need to make an application to the Supreme Court of New South Wales (or the other equivalent state courts) for a Grant of Probate. A Grant of Probate is an order from the Court confirming that the person appointed as executor to the will is authorised to administer and manage the assets in the estate accordance with the terms of the will. See: Supreme Court of NSW probate applications and probate overview. Most uncontested applications are now filed online via the NSW Online Registry.
Once a copy of the grant is provided to asset-holding institutions, such as financial institutions, superannuation funds or Land Registry Services, these institutions can release the asset(s) to the beneficiaries or into the name of the executor as trustee for the beneficiaries. Useful references: NSW LRS transmission by executor and Revenue NSW deceased estate transfer duty. For probate requirements and practical steps, see our page Probate in NSW.
Intestacy and Letters of Administration
When an individual dies without a will or a valid will, their estate passes into intestacy and will be administered according to the provisions set out in chapter 4 of the Succession Act 2006 (NSW) which provides the order of inheritance. The application made to the Court is known as Letters of Administration and is usually made by the deceased’s immediate next of kin (such as their spouse or children). This person applies to the court to become the administrator of the estate and are required to establish through evidence that they are the immediate next of kin. In the absence of any next of kin, an applicant must establish why they are the most suitable person to make an application to the court in respect of the deceased’s estate. See also: Service NSW guide for executors and our Letters of Administration resources.
Small or Modest Estates
If the deceased’s estate is modest and does not involve any property held solely or as tenants in common, the executor can write to the asset-holding institutions and request them to release the funds upon providing a certified copy of the death certificate. Where real property is involved, see NSW LRS guidance for transmission to a beneficiary or next of kin. The Law Society also maintains helpful Wills and Estates FAQs.
Partial Intestacy and Letters of Administration with the Will Annexed
Sometimes an estate falls into partial intestacy where:
- No executor was appointed;
- The executor is deceased or lacks capacity;
- The executor no longer wishes to act;
In any of the above situations, the application is for Letters of Administration with the Will Annexed. Ordinarily, a beneficiary in the will is the most appropriate person to make the application as they have standing to make such an application. The documents submitted in this application are similar to the requirements for a Probate application, however the applicant must provide evidence of:
- The executor being deceased – a certified copy of a death certificate is required
- The executor lacking capacity – a medical certificate is required or a Financial Management or Guardianship Order to show that the appointed executor lacks capacity
- The executor no longer wishes to act – the appointed executor(s) must fill in and sign UCPR Form 123 which is a Renunciation of Probate form and this is annexed to the application.
See our detailed guide: Letters of Administration with the Will Annexed.
Superannuation and Death Benefits
Superannuation death benefits are paid under superannuation law to dependants or to the legal personal representative, depending on nominations and trustee decisions. For fund and professional guidance see the ATO resources on accessing a deceased person’s tax and super and paying superannuation death benefits. NSW Trustee and Guardian information may also assist executors who cannot or do not wish to act: NSW Trustee and Guardian.
How We Can Help
Our firm acts for a client who is the primary beneficiary and being the deceased’s daughter, she is the most immediate surviving next of kin. In this matter, both the executors appointed renounced their role as executors. We are assisting our client with making an application for Letters of Administration with the Will Annexed. For tailored advice, contact our team: Contact Jameson Law or call (02) 8806 0866. You can also review general guidance across our Wills and Estates hub and related articles like estate planning, probate in NSW and letters of administration.
