Reviewing the Laws

Probate and Estate Administration NSW

Probate and Letters of Administration  - Obtaining the Right to Administer an 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.

If you would like us to assist you to obtain a Grant of Probate of a Will, please 

Reviewing the Laws

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.

Reviewing the Laws

What do I need to know about estate administration?

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 Estate Administration, visit our Knowledge Base. 

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Enquiries

For any enquiries, questions or comments, please call:

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or contact us by email here

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Sydney NSW 2000

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14 - 16 Suakin Street

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E:   info@mjmlawyers.com.au

T: 61 2 8089 3139

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What to expect when you visit our offices.

 

Our offices are designed to encourage you to feel calm and relaxed. We will listen carefully to your story before presenting some well-researched options to suit your situation. 

There is ample parking near our office and we are close to public transport and shops. 

We offer fixed fees where possible so that you will know in advance how much our services will cost.

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Our specialist legal practice at a glance.

 

Our highly trained practitioners are specialists in the following legal areas:

- Wills and Estate Planning

- Probate and Administration

- Resolving Wills and Estate Disputes

- Advising in relation to trusts 

- Powers of Attorney

- Enduring guardianship

- The affairs of incapable persons

We also specialise in listening. We understand that these matters can be distressing and we will give you the best advice possible for your circumstances.