Obtaining the Right to Administer an Estate - Probate and Letters of Administration
Before an estate can be administered, usually it is necessary for an application to be made to the Supreme Court to obtain the legal right to distribute the assets of the estate.
Where there is a Will
Where there is a will, it usually appoints someone to act as the Executor. That person can choose whether or not to accept the appointment and apply to the Court to be legally recognised as having the right to administer the estate. In certain circumstances, other people, such as beneficiaries of the estate, can apply for this right, instead of the nominated Executor.
Unless the estate is very small or the assets were owned jointly with another person, a Court order (referred to as the Grant of Probate or Letters of Administration) is required before the estate can be administered in accordance with the will.
The first step is to establish if the deceased person left a will and/or any other document recording their testamentary wishes (ie their wishes in relation to how they would like their property to be dealt with after their death).
What is a Will?
A Will is a document that records how a person intends their property to be dealt with after their death.
Does a Will have to be a written document? What can a Will be?
A Will is normally required to be in writing. However, in New South Wales a will can also be, if the Court permits, "anything from which sounds, images or writings can be reproduced with or without the aid of anything else".
Although Wills usually appear on printed pieces of paper or other material, wills can be, if the Court permits: in soft copy only, stored on a computer; recorded on video or webcam; typed in the notes app of an iPhone or written on a wall, just to give a few examples. It is therefore very important, in this digital age, to check all places (both physical and electronic) where a will might be stored or recorded.
Even if a Will has not been signed or if it was not signed in accordance with all of the usual requirements (for example, in the presence of two independent witnesses), the Court can still declare it to be a valid Will.
If a will is unusual (otherwise referred to as an informal will) and does not comply with the formal requirements prescribed by legislation, the Court must be satisfied that the deceased person intended the writing or recording to be his or her last will, without any further action having to be taken, before the Court will declare it to be a valid Will. Proving this can cause significant delays and costs. For this reason, warnings have been given by the Court about making unusual, informal or home-made wills.
What happens if there is no will?
Where there is no will
Where there is no will, the “laws of intestacy” will determine who is entitled to the assets of the estate (the beneficiaries).
Unless the estate is very small or the assets of the estate were owned jointly with another person, a Grant of Letters of Administration from the Court will be required, before the estate can be administered.
Contact us if you would like us to help you to obtain a Grant of Probate of Letters of Administration.
If there is a dispute about who should have the authority to administer the estate, please contact us for assistance.
If you are unhappy about who will receive the estate pursuant to the laws of intestacy, we can help.
What do I need to know about estate administration?
The Executor or Administrator of an estate has certain rights, duties and obligations with respect to the administration of the estate. If these duties are not fulfilled, the Executor or Administrator can, in some circumstances, be held personally responsible for any loss to the beneficiaries of the estate. In some circumstances, they can also be replaced.
If you are an Executor and need guidance with respect to your duties, to avoid personal liability, we can help.
If you are a beneficiary and have concerns about how an Executor is administering an estate, we can help if you contact us.
For more information about the steps involved in Estate Administration, find out more about our Deceased Estate Administration and Resolution Service and visit our Knowledge Base.