That is a very interesting question and one that depends on several things. In NSW, an Act of Parliament called the Succession Act, 2006, sets
There is something about Wills that sometimes brings out the worst side of human nature. Wills have the power to divide even the closest of
If a person in New South Wales dies without leaving a valid Will (referred to as dying ‘intestate’), or there is a Will but no Executor or the Executor is unable to perform his/her duties, then administration of the estate may only be carried out by a person applying for a Grant of “Letters of Administration” in the Supreme Court of NSW.
Where there is no valid Will, then there is a Government formula (loosely known as “the rules of intestacy”) which set out which persons are entitled to share in the estate assets as beneficiaries.
The person with the greatest interest in the “estate assets” owned by the deceased, as determined by the rules of intestacy, will usually be the person entitled to apply for a Grant of Letters of Administration.
If there is more than one potential beneficiary entitled under the rules of intestacy, then either all of the beneficiaries need to join in the application to the Supreme Court of NSW for a Grant of Letters of Administration, or those that do not wish to join in the application need to consent to the administration of the estate by the applicant or be served with notice of the application and do nothing to either consent or object to the applicant administering the estate.
Under succession law, a “spouse” includes a married spouse, de facto spouse or same sex spouse. “Children” includes biological children and adopted children, but not step-children.
The distribution of an intestate estate under the rules of intestacy will, in order of priority, be distributed as follows depending upon whether the deceased person leaves behind –
A Grant of Letters of Administration appoints the person applying (referred to as the ‘Administrator’) to administer the estate. The Grant of Letters of Administration empowers the Administrator to deal with estate assets such Bank accounts, Aged Care Facility refundable accommodation deposits, shares in companies, transfer of the title to real estate, or any other assets of the deceased. The Administrator is then able to pay the estate debts and distribute the balance of the estate to the beneficiaries entitled.
Sometimes there is a valid Will, but no Executor. This sometimes occurs if the Executor died before the deceased, or the Executor has lost capacity, cannot be found, or may even have “renounced Probate”, indicating that they are not prepared to accept their appointment as Executor under the Will and will not apply for a Grant of Probate.
In that case, one of the beneficiaries under the Will can apply for what is known as a Grant of “Letters of Administration with the Will Annexed”. The Administrator is then empowered to distribute the estate assets, not in accordance with the rules of intestacy noted above, but in accordance with the provisions in the Will.
More often than not, applying for a Grant of Letters of Administration is a longer process than applying for a Grant of Probate. The Court will require more information in order to grant Letters of Administration.
Much like applying for a Grant of Probate, there are certain procedures which must be followed prior to applying for a Grant of Letters of Administration, and the proposed Administrator must prepare and file with the Court –
An Affidavit either confirming or negativing the existence of a De Facto Relationship must be prepared and sworn by the Administrator. It is important to seek the advice and assistance of an experienced Estate Lawyer should you be required to apply for Letters of Administration.
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