Frequently Asked Questions - Letters of Administration
Who can apply for Letters of Administration?
Section 63 of the Probate and Administration Act NSW sets out that the following people may apply for Letters of Administration, and in the following order:
A Spouse of the deceased, or next of kin, or both;
A person who is fit to be trusted, or complies with the direction of the Court;
Any person, whether a creditor or not, that the Court thinks fit.
A foreign person cannot be granted Letters of Administration.
As can be seen above, almost anyone may apply for Letters of Administration provided they meet one of the above criteria, provided that someone with a greater entitlement has not applied, provided they are above the age of 18 years and provided that they comply with the Court’s direction including the requirement to pay an administration bond.
Do I need to apply for Letters of Administration?
Please click here to read information on whether you need to apply for Letters of Administration.
Who is entitled to the assets of the deceased if there is no Will?
The entitlement to the estate of the deceased in these circumstances will be determined by the rules of Intestacy as set out in the Succession Act (NSW). Click here to find out more.
What does ‘Intestate’ mean?
An ‘Intestate’ is a person who dies and either does not have a Will, or leaves a Will but does not dispose effectively by that Will, all or part of their property.
What is the difference between Letters of Administration and Probate?
Probate is an application made by the executor named in the last Will of the deceased. Letters of Administration is an application made by an interested party where there is no Will, in order for that person (called the Administrator) to administer the estate in the same way an executor does had there been a valid Will.
What is a Legal Personal Representative?
Legal Personal Representative is the term used to describe the person entitled to deal with the assets of the deceased, being either the executor or administrator.
How long does it take to obtain Letters of Administration?
The time it takes to obtain Letters of Administration will depend on the workload of the Court. Applications for Letters of Administration are not as straightforward as Grants of Probate and as such processing times can vary from 1 to 4 months. Click here to find out more.
What are the fees and costs to obtain Letters of Administration in NSW?
The fees and costs to obtain Letters of Administration depend on nature of the estate. Click here to find out more.
Do I need to disclose assets that were held as joint tenants?
Assets which are held by the deceased as joint tenants do not form part of the estate as at law these assets pass to the surviving joint tenant. Despite this, the details of the joint tenancy, including the nature of the asset and value should be disclosed to the Court in a separate schedule within the application for Letters of Administration to ensure that the executor has made a full disclosure to the Court.
The assets disclosed as being held as joint tenants are not included when determining the value of the estate, which is used to calculate the Letters of Administration filing fee. See more about fees and costs here.
What if the Will is discovered later?
If the Will of the deceased is located following the Grant of Letters of Administration the executor of that Will should be notified and the Grant of Letters of Administration will be revoked in favour of a Grant of Probate to the named executor.
What searches to I need to do in order to obtain Letters of Administration?
Extensive searches to locate a Will should be made of all of the deceased’s personal effects, together with enquiries to past and present banks, solicitors and accountants (including those firms in the locality where the deceased resided) and with the Court itself.
Do you offer other services apart from Letters of Administration?
Probate Sydney is a dedicated Probate and Letters of Administration service enabling Legal Personal Representatives (executors and Administrators) to obtain Probate and Letters of Administration at a fixed fee, quickly and hassle free. Probate Sydney can also assist with the administration of the estate after the Grant of Letters of Administration has been obtained, such as collecting all estate bank accounts into our trust account, paying beneficiaries and transferring assets (such as real estate and shares). Further details can be obtained at the time of commencing the application for Letters of Administration by contacting us here or calling 1300 4 PROBATE (1300 477 622).
What is a bond and do I have to pay one when applying for Letters of Administration?
A bond acts as security that the Administrator will, if Granted Letters of Administration, comply with their obligations to administer the estate and pay the rightful beneficiaries.
The Probate and Administration Act (NSW) provides that every person applying for Letters of Administration must execute a bond with one or more sureties before the Grant may be made unless dispensed with by the Court.
It is now the practice of the Court that the bond will be dispensed with provided that notice has been given to every adult beneficiary that the applicant intends to apply to the Court for Letters of Administration without a bond. It is then up to those adult beneficiaries to challenge the right to the bond if they so wish.
In circumstances where the beneficiary is a minor or under a disability the bond will be required unless consent is obtained from the minor’s guardian or in the case of an individual with a disability with a manager, the manager.
Probate Sydney’s Letters of Administration service includes the requisite notice to the beneficiaries to dispense with the requirements of an administration bond to enable a quicker and more cost effective application.
To get started with your application for Letters of Administration without the need to obtain an administration bond click here or call us on 1300 4 Probate (1300 477 622).
I have attempted to obtain Letters of Administration but have received requisitions from the Supreme Court of New South Wales, what do they mean?
A requisition from the Supreme Court of New South Wales is notice that some or all of the requirements under the Probate and Administration Act and/or Supreme Court Act have not been complied with.
Requisitions can be issued for a variety of reasons and to rectify such the Administrator will need to address the issues raised by filing further and/or amended documents.
Even if Probate Sydney did not file the application for Letters of Administration we are able satisfy the Court of the requisition, once we are instructed by you. Contact Probate Sydney by clicking here or calling 1300 4 Probate (1300 477 622).
Do I need to publish notice of the application for Letters of Administration in the newspaper?
No. The requirement to advertise in a newspaper has been amended to now require publication of Notice to Apply via the Online Probate Notice website.
Any application filed before 14 days from publication of this notice will be rejected and a requisition raised by the Court.
Do I have to pay for the Letters of Administration fees and costs with my own money?
Probate Sydney do not require payment of any fees until after the Grant of Letters of Administration is obtained apart from the Supreme Court of New South Wales filing fee.
In most instances the filing fee can be obtained from the deceased’s bank and as part of our service Probate Sydney corresponds with the deceased’s bank to request this filing fee.
In the event that the deceased did not leave sufficient funds in a bank account to pay the Court filing fee you will be required to pay this fee from your own money, although all costs and expenses incurred in administration of the estate (including the filing fee and Probate Sydney’s costs) are paid by the estate and you will be reimbursed from the estate assets once the Grant of Letters of Administration has been obtained and assets sold.
How long do I have to apply for Letters of Administration in New South Wales?
Applications should be filed with the Court within 6 months from the date of death. If an application is filed out side of this period, the Supreme Court of NSW will require an explanation for the delay to be filed in the form of an affidavit. Probate Sydney will ensure that your explanation for delay is set out within the application so that the Grant of Letters of Administration is not delayed further.
The administration of the estate should be finalised within 12 months from the date of death (‘the executor’s year’) to avoid interest being claimed by beneficiaries. Find out more about your duties by clicking here.
The deceased left assets in another State, can I obtain Letters of Administration in another State?
The Supreme Court of New South Wales requires that the deceased left assets in New South Wales in order for the Court to have the jurisdiction to make a Grant of Letters of Administration. If a Grant of Letters of Administration has already been obtained in New South Wales this document must then be Re-Sealed in the State where the assets are being held in order to release those assets, unless dispensed with by the assets holder (for example in most instances the Share Registries do not require Probate / Letters of Administration to be Re-Sealed in another State provided that certain declarations are made).
If there are no assets in New South Wales then Letters of Administration cannot be obtained in New South Wales and an application should be filed in the State where the asset is held.
What do I do after I have obtained Letters of Administration?
Following the Grant of Letters of Administration the Administrator must ensure that they perform their duties. Details of the Administrator’s duties can be found by clicking here.
In addition, a notice of intended distribution should be published in the newspaper so that you are protected from claims of creditors and beneficiaries. Probate Sydney organise this notice as part of the Probate and Letters of Administration service.
I have been told that I should apply for ‘Letters of Administration with the Will annexed’, what does this mean?
Letters of Administration with the Will annexed is an application to the Court to be appointed as Legal Personal Representative / Administrator in circumstances where the deceased left a valid Will but there is no executor by reason of death, incapacity or unwillingness or because the executor so named has renounced the appointment.
Contact Probate Sydney for more information or to get started with the application for Letters of Administration with the Will annexed by clicking here or calling us on 1300 4 Probate (1300 477 622).
I am not the only person entitled to apply for Letters of Administration but the other person does not want to do anything about applying. What are my rights?
If a person more entitled to make an application for Letters of Administration does not wish to apply then you may proceed with a sole application. The Court will require that notice of the application is served on the person who is so entitled and that an administration bond is paid so as to protect that person’s entitlement to the estate.
Probate Sydney handle the entire Letters of Administration application including the relevant notices to those entitled to take the estate on intestacy. Get started with the application by clicking here or calling us on 1300 4 Probate (1300 477 622).
What is a Reseal of Letters of Administration?
Letters of Administration obtained in any other State or Country is regarded as having no legal effect in New South Wales. To avoid a fresh application for Letters of Administration being made the Supreme Court of New South Wales may Reseal Letters of Administration obtained elsewhere provided the original Grant of Letters of Administration was made in one of Her Majesty’s Dominions (including another State of Australia).
Once Letters of Administration has been Resealed in New South Wales the original Grant of Letters of Administration is treated as if such was initially granted in New South Wales. Probate Sydney is experienced in obtaining the Reseals in New South Wales. Contact us to get started on the Reseal application by clicking here or calling 1300 4 PROBATE (1300 477 622).
Where do I have to go to sign the Letter of Administration papers?
Once the papers for Letters of Administration have been prepared by Probate Sydney we will require your attendance at one of our 10 Sydney locations to sign the affidavit material in support of the application. Attendance is strictly by appointment only and you can find out your nearest Probate Sydney location by clicking here.
If you are unable to visit us we will post you the documents to be signed (in the presence of a Justice of the Peace) and returned to our office.
To find out more or to get started with the application for Letters of Administration or Probate simply complete your details by clicking here, or contact us on 1300 4 PROBATE (1300 477 622).
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