When someone dies without a valid will, the law describes them as dying intestate, and nobody automatically has the power to deal with their assets. The family of the deceased cannot transfer property or close bank accounts on the strength of a death certificate alone. In this situation, a grant of letters of administration from the Supreme Court of NSW authorises someone to administer the estate. This person acts on behalf of all the beneficiaries. This process differs from probate.
Who can apply for letters of administration?
Chapter 4 of the Succession Act 2006 (NSW) sets out the intestacy rules governing who inherits. Section 63 of the Probate and Administration Act 1898 (NSW) sets out who the Court may appoint, in order of preference. The surviving spouse or de facto partner holds the strongest claim. Children follow, then parents, then siblings, then grandparents, then aunts and uncles, then any other next of kin. Finally, creditors or others whom the court considers it appropriate to appoint. In most cases, the person highest in this order will apply. Priority in practice follows entitlement under Chapter 4. The appointment remains a matter for the Court’s discretion. The Court can decline to appoint someone it does not regard as fit for the responsibility.
Application Process
- Rule 78.16 of the Supreme Court Rules 1970 (NSW) governs the timeframe for applying. Sometimes the applicant files the first application more than six months after the date of death. In that case, the supporting affidavit must include a statement explaining the delay.
- The applicant must obtain the death certificate of the Deceased. The applicant must then publish a notice of intended application. This notice gives anyone with a rival claim or competing entitlement time to come forward. There is a minimum waiting period of 14 days applicable after publication before the Court will accept the filed application.
- Swear an affidavit and provide the inventory: This includes an inventory of the estate’s assets and liabilities. The probate registry examines the application and may raise queries or requisitions, before issuing the grant. The Court typically assesses uncontested applications within several weeks. Matters involving a larger or more complex estate may take longer. Matters where the applicant is not the closest relative may also take longer. In this stage, there is a filing fee payable to the Court which changes periodically.
Common issues and disputes
Obtaining letters of administration can be straightforward in simple cases. Several issues may still arise that slow down the process or create family tensions. One common issue involves someone with a genuine interest in the estate lodging a caveat. A caveat stops the grant being made while the Court tests that person’s competing claim. A lodged caveat lasts six months and can be renewed. Its primary purpose is to protect legitimate claims that may arise.
If someone lodges a caveat without a genuine interest, the Court can order them to pay the estate’s costs of dealing with it.
Occasionally, there are questions about whether a partner qualifies as a spouse for intestacy purposes. A partner only counts as a spouse if they meet the legal test for a de facto relationship. The relationship must otherwise qualify as a registered relationship. Section 105 of the Succession Act defines a domestic partnership. It covers a registered relationship or interstate registered relationship under the Relationships Register Act 2010. It also covers a de facto relationship that has lasted a continuous 2 years. A relationship that has resulted in the birth of a child also qualifies. Family members sometimes dispute whether a partner qualifies as a spouse. This dispute affects what that partner can receive from the estate. It also affects whether they have priority to apply for the grant.
Another practical issue is locating everyone entitled to a share. The administrator must make proper enquiries to identify and find all beneficiaries. If someone entitled cannot be found despite genuine efforts, the administrator has an option. The administrator can apply to the Court for an order allowing distribution. The order treats the missing person as having died before the Deceased. This order protects the administrator personally. It does not erase the missing person’s entitlement. If they turn up later, they can pursue the people who received their share.
Families also sometimes misunderstand what forms part of the estate. The intestacy rules generally exclude superannuation death benefits from the distributable pool. They also exclude life insurance proceeds paid to a nominated beneficiary. Property held as joint tenants falls outside the pool as well. These pass outside the intestacy process, yet families often assume they are available to share.
After the grant is issued
Once letters of administration have been granted, the administrator’s role mirrors an executor’s role. This includes locating and securing assets, paying debts, and distributing what remains according to the intestacy rules. This differs from distributing the estate according to what family members think the person wanted. No will exists to record those wishes.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Fernanda Araujo, Law Graduate
