If a person dies without a valid Will or there is a valid Will but no named Executor is willing or able to apply for probate, a person will need to apply for Letters of Administration to the Supreme Court of NSW. The Letters of Administration allows the person to deal with assets of the deceased’s estate and administer the estate according to the law.
What are the different types of Letters of Administration?
There are principle two types of Letters of Administration.
Letters of Administration with the Will annexed
If the deceased has left a valid Will but there are no Executors named in the Will able or willing to apply for Probate, another person will generally have to apply for Letters of Administration with the valid Will annexed. Usually, it will be the beneficiaries that are entitled to the residue (remainder or leftover) of the estate under the Will. The person or people who are granted the Letters of Administration step into the shoes of the Executor and are obligated to administer the estate in accordance with the terms of the Will.
Letters of Administration (with no will) – intestate
Where a person dies without a valid Will, the person is said to have died intestate. In these circumstances, a person usually a spouse or close relative will generally need to apply for Letters of Administration. The Letters of Administration allows that person to manage and distribute the assets of the estate.
Our team can provide advice on any application for Letters of Administration in relation to a deceased estate.
What is the purpose of the Letters of Administration?
The grant of Letters of Administration allows the person who has been granted the administration (the Administrator) to manage the estate. The Administrator will be responsible for collecting the assets of the deceased, paying the deceased’s liabilities and distributing the remain assets of the deceased to the beneficiary.
Who can apply for Letters of Administration?
The Court will usually grant Letters of Administration to the major beneficiary or beneficiaries of the estate.
Where there is a Will, this will be the beneficiaries entitled to the residue of the estate.
Where there is no Will, this will usually be the surviving spouses or de facto spouse. The Succession Act sets out who is entitled (the beneficiaries) of the estate of a person who dies without a will (intestate estate). More details on the beneficiaries of an intestate estate can be found below. If there is no surviving spouse or de facto spouse, the appropriate person to apply for Letters of Administration will generally be a beneficiary under the intestate estate laws.
The Court will usually not grant Administration to anyone who is not a beneficiary of the estate. The exceptions to this include if the only beneficiaries of the estate are minors or where no beneficiary is willing to apply, a creditor of the estate may apply.
Where there are multiple people entitled to apply for Administration, the Court will either expect a joint application or the consent of the other people entitled to apply. On occasion, there may have to be a contested application to determine who should be the Administrator.
If you need advice on who should be applying for Letters of Administration or have other complications with the person or people applying, our experienced team is available to help.
When do I apply for Letters of Administration?
The Executors should generally apply as soon as possible after they have acquired all the necessary documents to apply to the Court. The Supreme Court requires an explanation by the Executors if they are applying after 6 months of the death of the deceased. If the Executors fail to apply for the Probate within 3 months of the death of the deceased, another person with an interest in the estate may apply to the Court for Probate to be granted to that person.
What’s involved in the application to the Court?
- Search for a will
- The Court will need to be satisfied that the deceased did not leave a Will or other document that sets out the deceased intention for their estate when they die.
- Searches will need to be made at the deceased home or residence and enquiries made with the NSW Trustee & Guardian, the Supreme Court of NSW, any banks of the deceased and any lawyers which the deceased may have had dealings with.
- Obtain all necessary documents & information
- To file the application for Letters of Administration with the Court, the Executors will need to disclose all the assets, liabilities and expenses of the estate. This is usually achieved by writing to the deceased’s banks, other asset holders and potential creditors to ascertain the assets and liabilities of the deceased.
- Determine who is entitled under intestacy and entitled to apply
- As part of the application, the Administrator will set out all the people entitled to the estate under intestacy (beneficiaries) under the law of intestacy.
- Further, the Administrators will need to set out all the relevant facts that prove their entitlement to apply for Letters of Administration and also disclose all other people who may be entitled to apply for Administration.
- Publish a notice of intended application for Letters of Administration through the Court
- The Court requires that the Administrators publish a notice that they intend to apply for Letters of Administration at least 14 days prior to filing the application.
- The notice is published through the Court’s Online Registry.
- Prepare all the necessary documentation for filing with Court
- The Administrators will need to have the documents list below at What documents need to be provided to the Court? prepared
- File the application for Letters of Administration with the Court
- The Court documents must be filed with the Court in hardcopy.
- The Court has rules regarding which documents and how many copies of each document must be filed.
- Deal with any requisitions from the Court
- On occasion, the Court will issue a requisition in respect of the application.
- For more information on requisitions, go to What is a requisition?
- Court issues the Letters of Administration
- Once the Court has reviewed the application, the Court will issue a Letters of Administration under seal of the Court.
- The Letters of Administration authorises the Executors to deal with the assets of the deceased disclosed to the Court.
- Administration of the estate
- The Administrators will need to collect the assets of the estate and administer the estate.
- For a more detailed outline of the obligations of the Administrator in the administration of the estate and how an estate is administered, see our page Administration of an Estate.
What documents need to be provided to the Court?
The Supreme Court requires a number of documents to be filed with the Court which include:
- the Will and any Codicils (if applying for Letters of Administration with Will annexed)
- the Death Certificate
- a Summons for Letters of Administration form
- an Affidavit that Deceased was not in a Defacto Relationship (if the person applying is not applying as defacto spouse)
- an Affidavit of Applicant for Administration
- an Inventory of Property form
- Grant of Letters of Administration form
- Consent to Administration form (if there are other people entitled to a share of the estate)
- Administration Bond (if there are minors entitled to a share of the estate or other beneficiaries of the estate do not provide consent to the application)
How long will the application take?
A simple application for Letters of Administration generally takes about 6 weeks once all the necessary documents are received.
The Administrators must publish a notice of intended application for letters of administration 14 days prior to filing the application with the Court. The Court will generally process the application within 4 weeks from when it is filed.
The Court provides an update on the current processing time at www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate.aspx
What is a requisition?
On occasion, the Supreme Court will issue a requisition to the Administrators. A requisition usually means there was an error or issue with the original application for Letters of Administration, or the Court wants to clarify something relating to the application.
Having a solicitor prepare the documents and filing the application on behalf of the Administrators reduces the risk of the Court issuing a requisition and the inevitable delay that a requisition causes. Our team can assist you if the Court has issued a requisition in response to your application for Letters of Administration.
Where can I find more information on Letters of Administration?
Supreme Court Fact Sheet
- Application for Letters of Administration with no will Fact Sheet
- Application for Letters of Administration with Will annexed Fact Sheet