What is Letters of Administration?

In New South Wales, where a person dies with a Will, the person named as executor may apply for a Grant of Probate.

Where a person dies without a Will, or where a person died with a Will but there are no executors willing or able to apply for probate, another person may be required to apply for a grant to administer the estate. This is referred to as a grant of Letters of Administration in New South Wales.

A grant of Letters of Administration is a legal document issued by the Supreme Court of New South Wales which grants the person named as administrator the legal authority to manage the administration and distribute the assets in accordance with the terms of the Will (where there is a Will) or with the laws of intestacy in NSW (where there is no Will).

Situations Necessitating Letters of Administration in NSW

A person may need to apply for Letters of Administration where:

• A person dies without leaving a Will (referred to as dying ‘intestate’) and the size and/or nature of the estate assets requires a grant of Administration before they can be dealt with (i.e., sold or transferred to beneficiaries).
• A person dies with a Will but the named executors have already died, are unable or unwilling to act due to age or sickness, or where the named executors renounce the role — this is referred to an application for Letters of Administration with the Will annexed.

Letters of Administration may not be required in all cases. Whether Letters of Administration is required depends on the size and nature of the estate assets. For instance, a person may not need to apply to the Supreme Court for a grant of Administration where the deceased didn’t own any assets; where the only assets held by the deceased were held as joint tenants, resulting in the property passing to the surviving tenant under the rules of survivorship; or, where the estate assets are of such a size and nature allowing them to be dealt with (i.e., transferred to a beneficiary) so as to not require Letters of Administration (such as where a person dies with a small amount of cash in the bank, and the bank agrees to release the funds to the next of kin without a grant of Administration).

Where the deceased held real property, a grant of Letters of Administration application is required before the administrator can deal with or transfer the property.

Differences Between Grant of Probate and Letters of Administration in NSW

A grant of probate is a grant made by the Supreme Court of NSW to a person named as an executor in a deceased person’s Will.

A grant of Letters of Administration is a grant made by the Supreme Court to a person who is willing to apply and who is not named as an executor in a deceased person’s Will.

Both a grant of probate and a grant of Letters of Administration give the person named in the grant the same powers. Once the grant is made, the person’s role is to administer the deceased person’s estate and distribute the deceased’s estate in accordance with the terms of their Will, or in the case of full or partial intestacy, in accordance with the laws of intestacy.

Eligibility Criteria: Who’s Eligible to Apply for Letters of Administration?

There are often multiple people who have standing to apply for Letters of Administration.

Generally speaking, the person with the largest interest in the estate is entitled to apply for the grant Letters of Administration. However, in other cases the next of kin may have primary standing to make an application. Each case will depend on its own facts. The NSW Trustee and Guardian may also apply for an administration of an estate where an estate requires administration but no other person wants to apply.

Intestacy in NSW: Order of Succession When There’s No Will

Intestacy can either be full or partial.

A full intestacy occurs where the deceased died without a Will.

A partial intestacy occurs where the deceased’s Will fails to dispose of all their assets (where, for instance, the deceased’s Will gifts one property away, but the deceased actually owned two properties at the time of their death, in which case the property not disposed of, will pass on a partial intestacy).

In NSW, the entitlement to assets passing on intestacy is prescribed by the intestacy rules set out in the Succession Act 2006 (NSW). In other words, the order of entitlement is prescribed in law.

Generally, an intestate’s estate will pass to the deceased’s spouse or de facto, and if there is no spouse or de facto, then to the deceased’s children, and if there is no spouse, de facto or children, then to the deceased’s parents, and if there is no spouse, de facto, children or parents, then to the deceased’s siblings, then cousins, then nieces and nephews, and so forth. The distribution is more complicated in the case of blended families, where there is a second spouse and children from prior marriage.

If the deceased dies without any relatives who are entitled under the laws of intestacy, the deceased’s estate will pass to the State of NSW.

Step-by-Step: How to Apply for Letters of Administration NSW

The process of applying for Letters of Administration can be complex and most executors or proposed administrators seek advice from a private lawyer experienced in probate and administration.

The steps leading up to and applying for Letters of Administration usually involve:

1. Conducting thorough searches to locate a Will.
2. Identifying the size and nature of the deceased’s estate.
3. Determining standing to apply for Letters of Administration.
4. Obtaining documents required for the application including the death certificate.
5. Preparing the court documents (Summons, affidavit(s) etc).
6. Filing the application with the NSW Supreme Court (which if not brought within 6 months of the date of death will require explanation for the delay) and paying the required court fees.
7. Responding to requisitions (if any) from the Court.
8. Once granted, collecting or receiving the original copy of the grant of Letters of Administration.

Post-Grant: Actions After Obtaining Letters of Administration

Once Letters of Administration has been granted, the administrator will has the legal authority to deal with, administer, and distribute the deceased person’s estate’s assets. This usually involves:

1. Calling in and protecting the assets of the estate.
2. Paying the estate’s liabilities.
3. Distributing the assets of the deceased in accordance with the rules of intestacy.

Understanding Costs: Fixed Fee and Other Expenses

In addition to the fee of any solicitor you may engage to assist with this process, there are also court filing fees payable to the Supreme Court. These fees are based on the gross value of the estate assets. The higher value the estate, the higher the fee payable.

It is also necessary to publish a notice of intended application for administration on the NSW Online Registry, also known as the Supreme Court Registry or the NSW Registry.

Expected Time Frame: From Application to Approval in NSW

The time is takes for the Court to grant Letters of Administration depends on a number of factors, including processing times, whether the Court issues requisitions, and the time it takes to respond to requisitions.

Duties and Responsibilities of an Administrator

An administrator is responsible for identifying, gaining possession of, and protecting the estate’s assets (including property, shares, cash, vehicles etc), identifying and paying all estate’s expenses (funeral, estate and administration expenses), completing tax returns for both the deceased and the estate (where required), defending claims against the estate, determining entitlements under the rules of intestacy, and distributing the estate in accordance with the terms of the Will or at law.

An administrator has a duty to act in the best interests of the estate and beneficiaries throughout the entire administration process. The court may find the administrator in breach of his or her duties if they have not complied with their duties.

Securing Expertise: Get in Touch With Empower Wills & Estate Lawyers Today

Assisting with a grant of probate or Letters of Administration is a service provided by probate Sydney lawyers Empower Wills and Estate Lawyers. We can assist you with obtaining a grant of Letters of Administration, including the application process, and determining entitlements to an estate. We can also assist with intended applications for Letters of Administration, and estate administration once the grant is made.

If you believe you are entitled to the estate of a deceased person, think you need to apply for or are entitled to apply for Letters of Administration, call us today to discuss.

Letters of Administration is an order of the court, and as such, it is recommended that you seek legal advice from a lawyer to ensure you complete the process properly to minimise any personal liability. Empower Wills and Estate Lawyers have experienced solicitors who can assist both the administrator through the process of applying for a grant of Letters of Administration and assist beneficiaries with determining any entitlement.

If you need held to apply for Letters of Administration or believe you may be entitled to a loved-one’s estate who died without a will, it is recommended to seek legal advice by calling us today on  1300 414 844.

Liability limited by a scheme approved under Professional Standards Legislation. 

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.