A will can feel like a heavy topic, but none of us know whether the unexpected lies ahead. Having a will means your estate can be distributed according to your wishes. As we mentioned in our earlier article “Wills are increasingly being made by younger people — what should you pay attention to when making a will in Australia?“, a will is a very important legal document, and many young people are now recognising its importance and putting one in place early. Where no will has been prepared, another crucial document comes into play: the Letter of Administration, which allows the distribution of the estate to proceed. In this article, we will outline the NSW legal rules governing Letters of Administration.
If the deceased did not leave a will, or did not appoint an executor in a valid will, or the executor is unwilling or unable to act, and you meet the conditions outlined below, you may apply for a Letter of Administration or Letters of Administration with the Will Annexed.
What is a Letter of Administration?
A Letter of Administration is a court order issued by the Supreme Court of New South Wales. It appoints a person as administrator of the estate, and that person is responsible for distributing the estate of a deceased person who did not leave a valid will.
If the deceased died in New South Wales without leaving a will and held assets (excluding assets jointly owned with others), the rules of intestacy under the law determine how the deceased’s property is distributed.
Purpose of a Letter of Administration
A Letter of Administration appoints an administrator of the estate. The administrator is responsible for collecting the deceased’s assets, paying the deceased’s debts, and then distributing the remaining estate to the beneficiaries. The Court issues the Letter of Administration so that the administrator can present it to those currently holding estate assets or who owe debts to the estate (such as banks holding bonds and retirement villages) and require them to transfer the assets or funds to the administrator (or to any other person the administrator may nominate).
Who can apply for administration?
Administration is only granted to a person entitled to the whole or part of the estate. If the only person entitled to the estate lives outside Australia, the Court may grant administration to that person’s attorney (a power of attorney must be signed). Administration is usually granted to the deceased’s closest relatives.
The Court may grant administration to the following persons:
- The deceased’s spouse
(A spouse is a person who was married to the deceased or who was in a “domestic partnership”* with the deceased.)
- Next of kin (one or more)
- The spouse together with other relatives
*A domestic partnership means a "registered relationship " between the deceased and another person, or a de facto relationship that has existed continuously for at least two years, or a relationship from which a child has been born. This includes same-sex relationships.
If the deceased has no next of kin, or no suitable or willing next of kin to apply, the Court may grant administration to:
- NSW Trustee & Guardian, or
- Any other person the Court considers appropriate.
Where two or more persons are entitled to a share of the estate under the rules of intestacy, they may jointly apply for a grant of Letters of Administration. If not all entitled persons apply, the applicants must obtain the written consent of all other persons entitled to apply.
Applying for a Letter of Administration can be a complex process. A thorough search must first be undertaken to locate any will the deceased may have made, or any document that may set out the deceased’s intentions regarding the distribution of the estate, and disputes can arise along the way. For this reason, it is best to seek professional legal advice before commencing an application for a grant of Letters of Administration.
Letters of Administration with the Will Annexed
The situation above concerns a deceased who did not leave a valid will. If the deceased made a valid will but one of the following circumstances exists, a beneficiary of the will may apply for Letters of Administration with the Will Annexed in order to obtain authority to execute the will:
- The will does not appoint an executor
- The executor died before the deceased or before applying for probate
- The executor has renounced probate
- The executor is unable or unwilling to execute the will, or
- The executor is outside Australia and has appointed you as their attorney to administer the estate while they are overseas
If the Court grants Letters of Administration with the Will Annexed, the administrator must distribute the estate according to the deceased’s wishes in the will rather than according to the "rules of intestacy".
Time limit for applying for administration
You must apply for administration within 6 months of the deceased’s death (unless there is a reasonable explanation for the delay). If you apply after 6 months, you will need to file an affidavit of delay (an affidavit of delay) with the Supreme Court of New South Wales.
Probate
We introduced probate in our earlier article “Wills are increasingly being made by younger people — what should you pay attention to when making a will in Australia?“. It is important not to confuse Letters of Administration with probate. Probate means:
If the deceased left a valid will, the executor appointed in the will is responsible for calling in the assets, paying the debts, and distributing the estate to the named beneficiaries. To obtain authority to carry out these duties, the executor can apply to the Supreme Court of New South Wales for probate of the deceased’s last will. Probate is a court order granted by the Supreme Court of New South Wales. It confirms that the will is valid and that the executor is authorised to distribute the estate.
In other words, where there is a valid will and the will appoints an executor, that executor must apply for probate. Only where there is no valid will, or the will does not appoint an executor, does the question of applying for a Letter of Administration or Letters of Administration with the Will Annexed arise.
Final thoughts
The above summarises the NSW legal rules governing Letters of Administration. If you are unsure whether you are entitled to apply for a grant of Letters of Administration, or if you need help applying for one, feel free to consult our experienced lawyers.
We have written several articles about wills to help you learn more about the detailed considerations of Australian wills. You may refer to:
As a beneficiary of a will, are you facing a challenge to the will from another party?
How do you make a valid will in Australia? Beyond witnesses, what else should you pay attention to?
You can also follow our articles, where we publish the latest Australian legal updates.
