Deceased estates
Letters of administration and intestacy in NSW
Where someone dies without a will, or the executor named in the will cannot act, the Supreme Court appoints an administrator instead of granting probate. The estate is then divided by a statutory formula rather than by anyone’s wishes, and that formula is rarely what families expect.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Fixed fees on the regulated scale for straightforward estates, generally paid out of the estate.
When letters of administration are needed
There are three situations, and they do not all produce the same result. The distinction matters, because in one of them the will still governs who inherits.
Letters of administration
The deceased left no will, or no will can be found after a proper search. An administrator is appointed and the estate is divided under the intestacy rules.
Administration with the will annexed
There is a valid will, but the executor has died, cannot be found, lacks capacity or will not act. An administrator is appointed instead, and the estate is still divided according to the will, not the intestacy rules.
Partial intestacy
The will is invalid, or it is valid but does not dispose of everything the deceased owned. What the will covers passes under the will. What it does not covers passes under the intestacy rules.
Search for a will first, properly. The court will expect evidence that you have looked. Wills are usually held by the solicitor who prepared them, but also turn up with accountants, in safe deposit boxes and among private papers. Enquiries should also be made with the NSW Trustee and Guardian and any solicitor the deceased is known to have used. Finding a will after a grant has been made is expensive to undo. Where to search for a will.
The intestacy rules
Who inherits when there is no will
The formula in New South Wales is not a queue running spouse, then children, then parents. It works in categories, and the first category that has someone in it takes the whole estate. This is the point most families get wrong.
| Who survives the deceased | Who takes the estate |
|---|---|
| A spouse, and no children | The spouse takes the whole estate |
| A spouse, and children all of that relationship | The spouse takes the whole estate. The children take nothing |
| A spouse, and children from another relationship | The spouse takes the personal effects, a set legacy amount adjusted for inflation, and half of what remains. The children share the other half |
| More than one spouse, for example a husband or wife and a de facto partner at the same time | The spouses share the spouse’s entitlement, either by agreement between them, by court order, or equally |
| Children but no spouse | The children share equally. The children of a child who died before the deceased take that child’s share between them |
| No spouse and no children | Parents, then brothers and sisters, then grandparents, then aunts and uncles, then first cousins, in that order |
| No relative in any of those categories | The estate passes to the State, which has a discretion to provide for dependants and others with a just claim |
What surprises people
- A spouse usually takes everything. Adult children of the marriage receive nothing on an intestacy where their surviving parent is alive. This is correct, and it is not what most people assume.
- A de facto partner is a spouse. A partner qualifies where the relationship was continuous for at least two years, or where there is a child of the relationship. That can produce a competing claim alongside a legal spouse who was never divorced.
- Separation is not divorce. A separated husband or wife remains a spouse for these purposes. People who have been apart for years, but never divorced, regularly inherit each other’s estates.
- Step-children are not children. Unless they were legally adopted, step-children take nothing under the intestacy rules regardless of how they were raised.
- A beneficiary must survive by thirty days. Someone who dies within thirty days of the deceased is treated as not having survived, which matters after an accident or where an elderly couple die close together.
- The surviving spouse can elect to keep the home. Where the estate includes a property the spouse was living in, they have a right to acquire it from the estate, subject to notice requirements and to accounting for its value. This has to be raised early rather than after the property is listed for sale.
An intestate estate can still be contested. Family provision claims are not limited to estates with a will. An eligible person who takes nothing, or too little, under the intestacy rules can apply for provision, and the same twelve month limit from the date of death applies. More on claims against an estate.
Who can apply to be administrator
The court prefers to appoint the person with the greatest interest in the estate, which usually means the person who stands to inherit the most.
- The surviving spouse or de facto partner
- One or more of the next of kin, who can apply jointly
- The spouse together with other relatives
- Where a will exists but the executor cannot act, usually a beneficiary named in the will
- Where there is no suitable or willing next of kin, the NSW Trustee and Guardian, or any other person the court sees fit
Where someone with an equal or better entitlement is not applying, the court will want their consent, or an explanation of why it has not been obtained. Where relatives cannot agree on who should apply, that is resolved before the grant rather than after it, and it is worth taking advice early because a contested appointment is expensive.
Do you need a grant at all?
Not every estate needs one. A grant is required when an asset holder will not release or transfer an asset without it, and for some estates that never happens.
Property held as joint tenants passes automatically to the surviving owner and no grant is needed. The survivor lodges a notification of death to have the title put into their name. Property held as tenants in common is different, because the deceased’s share forms part of the estate and a grant is generally required to transfer it.
Joint bank accounts pass to the surviving account holder under the right of survivorship. The bank needs to be notified so the deceased’s name comes off the account. Joint mortgages and loans do not always follow so smoothly.
Small sole name accounts and shareholdings may be released without a grant. Every institution sets its own threshold, commonly somewhere between about twenty and fifty thousand dollars. Ask each one in writing what its threshold is before assuming a grant is needed.
Superannuation is not an estate asset unless it is paid to the estate. Without a valid binding nomination the fund trustee decides who receives the death benefit, and it may pay a dependant directly without any grant. More on superannuation and death benefits.
Motor vehicles can often be transferred through Service NSW to the next of kin where no grant is otherwise needed.
Where there is a valid will and an executor able to act, the grant you need is probate rather than letters of administration. See probate and how the application works.
The process
How an application works
Establish that there is no will
We conduct and record the searches the court expects, including with the NSW Trustee and Guardian and any solicitor the deceased used. The evidence of those searches goes into the application.
Identify who is entitled
The intestacy rules decide who inherits, so the family tree has to be established and proved, with birth, marriage, divorce and death certificates as required. This is the step that most often takes longer than expected.
Notice of intended application
A notice is published on the Supreme Court’s online registry. At least fourteen days must pass before the application can be filed, which gives creditors the opportunity to come forward.
Filing
The summons, the administrator’s affidavit and the inventory of property are filed with the court, together with the consents of anyone with an equal or better entitlement who is not applying. The filing fee is set on a sliding scale according to the value of the estate.
Requisitions and the grant
The registry may raise questions about the application, most often about the searches for a will or about proof of relationships. Once satisfied, it issues the grant, and that document is what banks and the land registry act on.
Administering the estate
Assets are called in, debts and tax are paid, a notice of intended distribution is published, and the estate is distributed strictly in accordance with the intestacy rules. Beneficiaries are provided with a statement of receipts and payments.
Timing, and the trap in it. The application should be made within six months of the death, and later than that the court will want an explanation for the delay. Separately, an administrator is protected against personal liability for a family provision claim only where the estate is distributed no earlier than six months after the death, after publishing a notice of intended distribution and letting the required period run, and where the administrator has no notice of a claim. Distributing early, or distributing knowing someone is unhappy, exposes the administrator personally. An administrator has no will to point to, so getting the entitlements right is entirely on them.
What we will need from you
This varies with the estate, but the usual list is:
- The death certificate issued by the Registry of Births, Deaths and Marriages
- Any document that might be a will, even an informal or unsigned one, and details of where you have searched
- Your identification and proof of address
- Details of the family: the deceased’s marital history, any de facto relationship, and all children including any from earlier relationships
- Marriage, divorce, birth, adoption and death certificates as needed to prove those relationships
- Bank statements and account details, including loans, credit cards and mortgages
- Rates notices, title details and insurance for any property
- Shareholdings, managed funds and superannuation statements
- Vehicle registration details, and details of any items of real value or money owed to the deceased
- Access details for digital assets, including cryptocurrency wallets, which are often lost entirely because nobody holds the keys
What it costs
Two components, both ordinarily paid from the estate rather than by the administrator personally. The Supreme Court filing fee is set on a sliding scale according to the gross value of the estate, and there is a fee for publishing the notice. Our fees for a straightforward estate are charged on the regulated scale for uncontested applications, calculated on the value of the estate, and you will know the figure before we start.
An intestate estate is usually more work than a testate one, because the entitlements have to be established rather than read off a document. Where the family structure is complicated, where a beneficiary cannot be located, or where there is a dispute about who should administer, that additional work is charged separately and disclosed to you in advance.
When it is not straightforward
A beneficiary cannot be found
An estranged sibling or a child nobody has heard from in years still takes their share. Enquiries have to be made and evidenced, and in some cases the court’s directions are needed before the estate can be finalised.
Competing spouses
A husband or wife who was never divorced, and a de facto partner at the time of death, can both qualify. The entitlement is shared, and how it is shared is either agreed or determined by the court.
A beneficiary is a child
A minor’s share cannot be paid to them directly and is held on trust until they turn eighteen. That affects how the estate is finalised and what the administrator has to account for.
Relatives cannot agree
Where more than one person wants to administer, or someone objects to the proposed administrator, the dispute is resolved before the grant. Early advice is much cheaper than a contested application.
A will turns up late
A will found after a grant has been made can require the grant to be revoked and the estate reopened, particularly if money has already been distributed. This is why the initial search matters.
Assets overseas
A NSW grant can be resealed in some jurisdictions and others require a fresh application in that country. We will tell you at the outset what each one requires.
Common questions
What is the difference between probate and letters of administration?
Probate is granted to the executor named in a valid will, and the estate is divided according to that will. Letters of administration are granted where there is no will, and the estate is divided under the intestacy rules. Where there is a will but no executor able to act, the grant is letters of administration with the will annexed, and the will still governs who inherits.
My husband died without a will. Do the children get a share?
If all of his children are also your children, no. You take the whole estate. If he had children from an earlier relationship, you take his personal effects, a set legacy amount and half of what remains, and those children share the other half. The distinction is often the difference between keeping the house and having to sell it.
We were separated but not divorced. Do I still inherit?
Generally yes. Separation does not change your status as a spouse for the purposes of the intestacy rules. If there is also a de facto partner at the date of death, the spouse’s entitlement is shared between you.
How long does a grant take?
Fourteen days must pass between publishing the notice and filing. Once filed, a straightforward application is commonly granted within a few weeks, though registry times vary and requisitions add to it. Establishing entitlements and gathering the certificates needed to prove relationships often takes longer than the court process itself.
Can more than one person apply together?
Yes. Eligible people can apply jointly, or one can apply with the written consent of the others. Where someone with an equal entitlement will not consent and will not apply, we deal with that in the application rather than leaving it to surface as a requisition.
Can I apply myself, without a solicitor?
You can, though these applications are harder than probate applications, because the entitlements have to be worked out and proved rather than read off a will. The risk also sits with you personally: an administrator who distributes to the wrong person, or in the wrong shares, can be ordered to make good the difference. Our fees come out of the estate.
Do we need a grant to transfer the house?
If it was held as joint tenants with a surviving owner, no. A notification of death puts the title into the survivor’s name. A grant is required where the deceased was the sole registered owner, held as a tenant in common, or was a joint tenant whose co-owner died first. The difference between joint tenants and tenants in common.
What if there are no relatives at all?
The estate passes to the State. The State has a discretion to make provision for dependants of the deceased and for others with a just claim, so if you were dependent on someone who died without a will and without family, take advice rather than assuming there is nothing available.
We will work out who is entitled and get the grant
Bring us the death certificate and whatever paperwork you have. We will tell you whether a grant is needed at all, who the intestacy rules say inherits, who should apply, and what it will cost. Our fees are ordinarily paid from the estate rather than by you.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153, in the Norwest Business Park. We act for administrators across New South Wales.