It is extremely stressful when a loved one dies; administering the estate can be overwhelming. We have the experience and compassion to guide you through this process and help you feel supported every step of the way, understanding that this is a difficult time for you and your family.
If a person has a will, the process of administering the estate is called Probate; if there is no will, or it cannot be found, the process is Letters of Administration. Letters of Administration means:
- A person has died “intestate” or without a will;
- Where there is a will, but the named executor is unable or unwilling to perform their duties; or
- The will is invalid or does not properly dispose of all of the estate property.
What this means is that the distribution of the estate is determined ‘ at law’ under the Succession Act 2006 (NSW). In this case, assets are distributed in the following order:
- Spouse or de facto spouse
- Children
- Parents
- Brothers and Sisters
- Grandparents
Typically, the Administrator is responsible for administering the estate. The Administrator’s duties include, but are not limited to, applying for Letters of Administration, collecting and distributing assets in accordance with the law, and managing estate liabilities. Executors named in a will have similar responsibilities but are appointed through the will. Understanding these roles can help you identify who should be involved and what to expect during the process.
Typically, when a person dies, their assets are ‘frozen’ pending Probate or Letters of Administration. Delays can occur due to court processing times, estate complexities, or missing documentation, which may extend the timeline. The Administrator or Next of Kin should be aware that they may be able to contact the deceased’s bank to cover these accounts, including funeral expenses. Creditors usually have to wait until the estate is administered to receive payment, and assets may be handled differently depending on the estate’s circumstances.
In Short:
| Manager / Nominee to deal with the Estate | Status of the Will | Division of the Estate (No Claims) | |
| Probate | Executor | Valid Will | According to the Will |
| Letters of Administration | Administrator | No Valid Will | According to Intestacy Laws |
Who can apply for letters of administration?
The grant for administration is typically completed by the ‘next of kin’:-
- spouse of the deceased
- one or more of the next of kin (the application can be joint with a number of administrators)
- the spouse jointly with other relatives.
If there is no ‘next of kin’ or none that are appropriate or willing to apply for the grant, the court may grant administration to:-
- NSW Trustee and Guardian
- Any other person the court sees fit.
What do I need to do when a person dies?
- Firstly, take care of yourself and your family. Dealing with an estate can be a fairly long process that does not need to start immediately.
- Following the reporting of the death, either to the Police or Medical Professionals, you will need to organise the funeral – remember that you may be able to access the deceased’s money to do this with the assistance of their financial institution.
- Register the Death with Service NSW – typically, the Funeral Director will attend to this; however, it needs to be completed within 7 days from the date of death. Service NSW will be responsible for issuing the death certificate by post.
- Notification of Death to Services – The Australian Government runs a program called the Australian Death Notification Service, which links into a number of institutions and major corporations to make this process streamlined.s
- Start to collect together the financial records, list of assets of the estate, and any relevant documents. Your solicitor will guide you through the necessary paperwork, helping you understand each step of the process so you do not feel overwhelmed or alone in this task.
What about Joint Property? Do I need to do Letters of Administration?
There is no statutory requirement to obtain Letters of Administration in every case. There are a number of occasions when particular assets are not included in a person’s estate. They can include:
Property owned in Joint Tenancy
Married couples commonly hold property as joint tenants, where each owner does not own a distinct portion of the property.
If the deceased holds the property as a joint tenant with another person, Letters of Administration are not required. The surviving owner must speak with a conveyancer or us to arrange a Notification of Death with NSW Land Registry Services so they can become the sole owner on title.
If people own the property as tenants in common, Letters of Administration are often required because each person owns a distinct portion of the property. This will often be reflected on the certificate of title as 30/70 or similar.
Joint Bank Accounts
In cases where the deceased person shares a bank account with another person, the “right of survivorship” generally applies, and Letters of Administration are not required to release or transfer funds. This means that, irrespective of the will, the survivor is entitled to the account. The banks will need to be notified of the deceased’s death by one of the account holders, and the deceased’s name will be effectively removed from the account. Please note that this may not happen with mortgages, or it can take some time, which can be distressing.
Shares or Bank Accounts with Low Value
If the remaining shares or bank accounts (held in a sole account) have a small value and there is no other need for Letters of Administration, the executor should approach the bank, shareholder, or financial institution to release funds to the beneficiaries in accordance with the will. Every financial institution will have different thresholds, typically ranging from $20,000 to $50,000.
Superannuation
Letters of Administration may be required in cases when there is no current and/or valid binding nomination by the deceased person. Funds can also vary greatly in cases where there is a binding nomination to pay the nominee; this can take weeks to months, depending on the fund.
Motor Vehicles
In cases where there is a will and Letters of Administration are not required, the executor may be able to approach Service NSW and organise the transfer of the vehicle to the executor and/or beneficiary, especially in the case of the beneficiary being the surviving joint operator or next of kin.
Our fees are fixed according to the scaled fees in Schedule 3 of the Legal Profession Uniform Law Application Regulation, based on the value of the estate.
Our office is located in Bella Vista, within the Norwest Business Park in the Hills District, serving NSW. We understand how difficult this time is for you. We bring years of experience providing clear information on costs and timelines so you can plan accordingly.