Probate and Letters of Administration in NSW

When someone passes away it typically falls to the family and relatives of the deceased to take control of any assets and debts and distribute them in accordance with the Will. Depending on the specific details of the Will (or lack of) and the value and types of assets held by the estate, a grant of Probate or a Letter of Administration may be required. East Coast Law is highly experienced in providing expert legal guidance and services in the application for grants of Probate and Letters of Administration.

Grants of Probate in NSW

What is Probate?

A grant of Probate is a legal document issued by the NSW Supreme Court that authorises an executor(s) as nominated by the Will to access and manage the deceased person’s estate in accordance with the stated wishes of the Will.

Grants of Probate issued by the NSW Supreme Courtare only valid for estate assets inside of NSW. For assets held in other states or overseas, separate grants must be sought from relevant judicial bodies.

Who Can Apply for probate?

Only an executor(s) nominated in the Will can apply for probate. If the Will does not name an executor or no named executors are able or willing to apply for Probate, then a Letter of Administration with the Will annexed is required (more on Letters of Administration below).

A nominated executor has the right to decline probate if they are unwilling or unable to take on the role. An executor can step down by signing a Probate Renunciation document.

Often a Will nominates a “backup” executor or substitute executor for cases where the primary executor(s) is unwilling or unable to fulfil the role. A substitute executor can apply for a grant of Probate only if any nominated primary executors have passed away or have otherwise renounced executorship.

If you’ve had a loved one pass away and have questions about who should apply for probate please contact our friendly team for guidance.

Do I Need to Apply for Probate?

A grant of Probate is not always necessary. For circumstances where the value of the estate’s assets is low, a grant of probate is often not needed as holders will usually release smaller amounts without it. Where property is owned by a couple (married or de-facto), the property automatically passes to the surviving spouse.

A grant of Probate is required in NSW where;

Real estate is held solely in the name of the deceased or as tenants in common.
The asset holder such as banks, the ATO, superannuation funds, or insurance agencies advises it.
A sole bank account contains money in excess of a certain amount (usually $20 – 50k plus).
Significant shares or investments have been made and held solely in the name of the deceased (usually $20 – 50k plus).

Applying for Probate in NSW

Applications for Probate should be made within 6 months of the death of the Will-maker. Whilst not strictly necessary, it is highly recommended to seek legal advice from an experienced and qualified solicitor when applying for probate.

The process of receiving a grant of Probate is as follows;

Establish your eligibility to apply for Probate and advertise your intention to apply.
Court documents are prepared and lodged along with the Will and death certificate with the NSW Supreme Court.
The Court reviews the documents and Will to ensure everything is in order.
The Court will issue a grant of Probate or will raise a requisition for further information.
Once a grant of Probate is issued and sent directly to the executor, that person will hold legal access to the estates’ assets to distribute them amongst the beneficiaries in accordance with the Will.

Speak to our team of estate lawyers to create a plan that protects your assets and your family

Letters of Administration in NSW

What are Letters of Administration?

A grant of Letters of Administration is a legal document issued by the NSW Supreme Court that authorises the administrator(s) to access and manage a deceased persons’ estate. Unlike grants of Probate, Letters of Administration are used where there was no known Will made by the deceased.

Once granted, the administrator of the estate will be responsible for its assets, debts, and the distribution of any assets to beneficiaries. You will have the right to sell or transfer assets and access information from organisations such as banks and superannuation funds.

There are also Letters of Administration with the Will Annexed. These documents grant access to manage a deceased person’s estate where a Will was made but no executor was nominated, willing, or able to apply for Probate. In this case, the Will is still valid and the administrator must manage the deceased person’s estate in accordance with the details of the Will.

A grant of Letters of Administration issued by the NSW Supreme Court is only valid for estate assets inside of NSW. For assets held in other states or overseas, separate grants must be sought from relevant judicial bodies.

Who Can Apply for Letters of Administration?

Letters of Administration can be obtained by any potential beneficiaries of the inheritance of the estate – generally immediate family members. Family members entitled to inheritance in order of preference in accordance with the Succession Act 2006 (NSW) include;

Spouses, including de-facto and registered relationships
Spouses and children of the deceased from a previous relationship (shared)
Children of the deceased
Parents
Siblings, including half-siblings and adopted siblings but excluding step-siblings
Grandparents
Aunts and Uncles

Where there is more than one relative of the same type (ie multiple children) they can apply jointly for Letters of Administration. However, if only one person intends to apply when multiple relatives of the same type exist, they will need to either obtain consent from each eligible relative or serve notice of their intention to apply.

An applicant for the role of Administrator must be over the age of 18. They should be prepared for the responsibilities of the role which can include significant paperwork and dealing with multiple asset holders and debtors.

If you have any questions about your validity to apply for Letters of Administration please contact our friendly team for guidance.

Do I Need to Apply for Letters of Administration?

As with grants of Probate, Letters of Administration are not always necessary and the same basic criteria apply. For circumstances where the value of the estate’s assets is low, a grant of Letters of Administration is often not needed as holders will usually release smaller amounts without it. Where property is owned by a couple (married or de-facto), the property automatically passes to the surviving spouse.

A grant of Probate is required in NSW where;

Real estate is held solely in the name of the deceased or as tenants in common.
The asset holder such as banks, the ATO, superannuation funds, or insurance agencies advises it.
A sole bank account contains money in excess of a certain amount (usually $20 – 50k plus).
Significant shares or investments have been made and held solely in the name of the deceased (usually $20 – 50k plus).

Applying for Letters of Administration in NSW

Applications for Letters of Administration should be made within 6 months of the death of your family member. Whilst not strictly necessary, it is highly recommended to seek legal advice from an experienced and qualified solicitor when applying.

The process of receiving a grant of Letters of Administration is as follows;

Make genuine efforts to find a Will. The Court must be convinced that no Will exists, so an applicant should be sure to check the deceased personal belongings, with any banks or lawyers they had used, as well as the NSW Trustee & Guardian and the Supreme Court of NSW
Establish who is eligible to apply for the role of Administrator under intestacy (the preference order outlined above), whether a sole or joint application is to be made, and advertise your intention to apply.
Court documents are prepared and lodged along with the death certificate with the NSW Supreme Court.
The Court reviews the documents to ensure everything is in order and that you are a valid applicant.
The Court will issue a grant of Letters of Administration or will reject your application.
Once a grant of Letters of Administration is issued and sent directly to the administrator, that person will hold legal access to the estates’ assets to distribute them amongst the beneficiaries.

Experienced NSW Wills and Estate Lawyers

Our highly experienced legal team will provide guidance on the applications for Probate and Letters of Administration, prepare all relevant documentation, and lodge with the NSW Supreme Court on your behalf – All you need to do is sign the documents under the witness of a Justice of the Peace (JP).

We ensure That access to your loved one’s estate is as fast, efficient, and stress-free as possible. Our commitment to compassionate and professional advice, along with our dedication to the careful and considered preparation of your legal documents, means you can rest assured knowing that your application is taken care of.

With offices in Newcastle, Toukley, Maitland, Edgeworth & Port Macquarie our team are here to help you with affordable and approachable guidance and applications for Probate and Letters of Administration

Speak to our team of estate lawyers to create a plan that protects your assets and your family

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