Estate Administration

Dealing with an estate can generally be divided into two situations.

If the deceased left a valid will and the will named an executor, that executor usually needs to apply to the Supreme Court of New South Wales for a grant of probate, by which the court formally confirms the validity of the will and the authority of the executor named in it.
If the deceased did not leave a valid will, or the will is no longer valid, there is no executor. In this situation, a spouse, child or other eligible close relative usually needs to apply to the court for letters of administration. Once the court grants this, that applicant becomes the administrator and obtains the authority to administer the estate.

A grant of probate is the formal process by which the Supreme Court of New South Wales confirms that a will is valid and that the executor has the authority to administer the estate.

Once a grant of probate has been obtained, the executor can usually demonstrate their authority to administer the estate to banks, land registries, investment platforms and other asset holders, and can then proceed with collecting assets, paying debts and distributing the estate.

The key matters in a grant of probate include confirming that the deceased has died, that the will is the last valid will, that the applicant is the executor named in the will, and that the assets and liabilities of the estate have been properly disclosed to the court.

Whether you need to apply for a grant of probate usually depends on the types of assets in the estate, their value, and the requirements of the relevant institutions.

Situations in which a grant of probate is commonly required include:

the structure of the estate is complex and the executor needs formal authority before dealing with it.

If the estate is small, or most of the assets are jointly held, in some cases a grant of probate may not be required. Whether an application is needed should be confirmed according to the types of assets involved and the requirements of the relevant institutions.

A probate application usually begins with confirming the original will, the death certificate, and information on the estate’s assets and liabilities, and preparing the relevant court documents.

In NSW, before lodging an application you usually need to publish a notice of intended application for probate through the court’s online system. After the notice has been published, you need to wait for the prescribed period before formally lodging the application.

Once the application documents have been prepared, the executor needs to sign the relevant materials and lodge the application with the court. After reviewing the documents, if the court considers that there are issues with the materials, it may issue a requisition for further documents. The court will only issue the grant of probate once it is satisfied.

Once the grant of probate has been obtained, the executor can provide the document to banks, land registries and other asset holders in order to continue dealing with the estate’s assets.

In NSW, an executor should usually apply for a grant of probate within 6 months of the deceased’s death.

If the application is lodged more than 6 months after the death, you usually need to explain the reason for the delay to the court. A delay does not necessarily cause the application to fail, but it does add to the documentation and explanation required.

Family members usually need time to deal with funeral and family matters after a loved one passes away, but if the estate includes property, bank accounts or investment assets, or if costs and debts are accruing, delay in dealing with these matters may affect the administration of the estate. The safer approach is to confirm as early as possible whether a grant of probate is required and to begin organising the relevant documents.

An executor is not only responsible for completing the formalities; more importantly, they take on legal duties. An executor usually needs to:

distribute the estate in accordance with the will and the law.

If an executor distributes the estate too early, or pays money to beneficiaries before the debts have been fully dealt with, they may be exposed to personal liability. For this reason, where the position of the estate is unclear, it is usually advisable to first confirm the debts, taxes and any potential claims before deciding whether to distribute the estate.

What if the executor does not wish to take on the role
Being named as the executor in a will does not necessarily mean you must actually take on the role.

If the named executor is not willing to act, they can usually consider renouncing the role of executor. Whether renunciation is appropriate, how the documents should be signed, and who will continue with the application for probate, all need to be dealt with according to the terms of the will and the family’s circumstances.

If the executor has already begun dealing with the affairs of the estate, withdrawing later may be more complicated. For this reason, if you are not sure whether you are willing to act as executor, it is advisable to obtain legal advice before formally taking any steps.

If the deceased did not leave a valid will, family members usually cannot simply distribute the estate according to their own understanding.

In this situation, it may be necessary to apply to the court for letters of administration. Once the court appoints a suitable person as the administrator, that administrator can then lawfully collect the assets, pay the debts, and distribute the estate in accordance with the rules of intestacy.

Where there is no will, who is entitled to apply, who is entitled to inherit, and how much each person may receive all need to be determined according to the family relationships and the relevant law. Blended families, de facto partners, minor children, overseas relatives or complex family relationships usually call for greater care.

Once court authority has been obtained, the executor or administrator formally enters the estate administration stage, in which they continue to deal with the assets, debts and distribution.

Estate administration usually includes:

keeping the relevant records, so that the administration of the estate can be explained later.

Where the estate involves overseas assets, company shareholdings, family trusts, disputed beneficiaries or potential claims against the estate, the administration process is usually more complex.

NS Legal can assist clients with probate, letters of administration and the ongoing administration of an estate.

We can help our clients by:

providing legal advice where there is a dispute between beneficiaries, a dispute between executors, or a potential claim against the estate.