When someone dies leaving a Will, is not always possible for the person appointed as executor in the Will to simply apply to the Supreme Court of NSW for Probate.

Sometimes the executor has died, is unwilling to act, or is otherwise unable to administer the deceased estate. In other cases, the Will does not appoint an executor at all.

In these circumstances, an application for Letters of Administration with the Will Annexed may be necessary.

What is the difference between Probate and Letters of Administration with the Will Annexed?

Probate is a grant made by the Supreme Court of NSW confirming the validity of the deceased person’s Will and authorising the executor appointed under that Will to administer the estate.

Letters of Administration with the Will Annexed is a different type of grant. It is made where the deceased left a Will but there is no executor available to obtain Probate.

The person appointed by the Court is called the administrator rather than the executor.

Although the terminology is different, the administrator generally has similar responsibilities to an executor. These include collecting the deceased’s assets, paying outstanding debts and distributing the estate according to the terms of the Will.

When is Letters of Administration with the Will Annexed required?

There are several circumstances where an application may be necessary.

1. The Will does not appoint an executor

A Will should ordinarily appoint an executor to administer the estate. However, if a Will does not name an executor or the appointment may be ineffective, a beneficiary under the Will may need to apply for Letters of Administration with the Will Annexed.

2. The executor has died

If the only executor appointed under the Will dies before the deceased, there may be nobody able to apply for Probate.

Similarly, if the sole executor dies after the deceased but before obtaining Probate, the position needs to be carefully examined. Depending on the circumstances, an application for Letters of Administration with the Will Annexed may be required.

If there are multiple executors and one dies, the surviving executor or executors can generally apply for Probate.

3. The executor does not want to act

An executor may decide that they do not wish to take responsibility for administering the estate.

For example, the executor might live overseas, have other commitments or simply not wish to become involved in the administration.

An executor can formally renounce their right to obtain Probate by signing a Renunciation of Probate.

If there are no other executors or eligible substitute executors able to apply, a beneficiary may then apply for Letters of Administration with the Will Annexed.

4. The executor is mentally or physically incapable

An executor might be suffering from an illness, disability or other condition that prevents them from carrying out their responsibilities.

Depending on the circumstances, medical evidence may be required to establish the executor’s incapacity.

The appropriate application will depend on the circumstances and whether there are other executors or substitute executors appointed under the Will.

5. The executor cannot be located or contacted

Sometimes an executor cannot be found or has become uncontactable.

This does not automatically mean that Letters of Administration with the Will Annexed is required. The Supreme Court has procedures for dealing with executors who cannot be located or who fail to participate in the application process.

Legal advice can help determine the appropriate procedure.

Who can apply for Letters of Administration with the Will Annexed?

Generally, a beneficiary named in the Will can apply.

The Court will usually prefer an applicant who has a substantial interest in the estate, such as the person entitled to receive the residue of the estate (the balance remaining after specific gifts, debts and expenses).

Where there are several beneficiaries, the Court may require evidence that the other beneficiaries have been notified or have consented to the application.

The person applying does not necessarily have to be the largest beneficiary, but they must establish their entitlement to apply.

What if the original Will cannot be found?

If the original Will cannot be located, this is a separate complication.

It may still be possible to obtain a grant based on a copy of the Will or other evidence of its contents. However, the Court will require additional evidence explaining what happened to the original and establishing the deceased’s testamentary intentions.

These applications can be more complicated than an ordinary application for Letters of Administration with the Will Annexed.

How do you apply to the Supreme Court of NSW?

An application involves preparing and filing documents with the Supreme Court of NSW.

Depending on the circumstances, these will generally include:

• A summons seeking Letters of Administration with the Will Annexed.
• An affidavit explaining the circumstances of the deceased’s death, the Will and why Probate cannot be obtained by an executor.
• The original Will and death certificate.
• Any necessary renunciations, consents or supporting evidence.

The applicant must also comply with the Court’s requirements concerning notice to beneficiaries and other interested parties.

Applications should generally be made within six months of the deceased’s death. An explanation for the delay must be provided if an application is made later.

How can Mid Mountains Legal assist?

Determining whether Probate or Letters of Administration with the Will Annexed is required is not always straightforward. The wording of the Will, the circumstances of the executor and the interests of the beneficiaries all need to be considered.

Mid Mountains Legal can advise you about the appropriate type of grant, who is entitled to apply and the documents required by the Supreme Court of NSW.

Located at Lawson in the Blue Mountains, our solicitors assist clients with deceased estate applications throughout the Blue Mountains region.

Contact us now for free, no-obligation telephone advice about applying for Probate or Letters of Administration with the Will Annexed. We can help you understand which type of grant is required and assist you with the application process.