Letters of administration in NSW
When a loved one passes away leaving a significant estate, an application must generally be made to the Supreme Court of NSW before the estate’s asset holders will release them to the executor to pay the estate debts and distribute the balance to the beneficiaries.
When a loved one passes away with no will (i.e. called “intestate”), their partner, spouse or next of kin must obtain a grant of a letter of administration.
When the letter of administration is granted, asset holders (such as government departments and banks) will release the estate assets for the administrator to pay the estate’s debts and distribute the balance in the order and proportions set out in the intestacy rules in the Succession Act.
Need help administering a deceased estate?
With extensive experience in estate administration, we can advise, support and guide you through the process of estate administration at this difficult time.
We can help ease your stress by:
- advising organisations including asset holders of the person’s passing;
- obtaining a grant of a letter of administration
- providing asset holders with copies of the death certificate, executor’s and beneficiaries’ identification and other documents, and by engrossing forms required by asset holders for your signature;
- gathering in the estate assets, paying debts, and distributing the balance in accordance with the rules of intestacy.
What is a Letter of Administration?
The Supreme Court of NSW (The Court) issues Letters of Administration. This type of grant is issued where the executor/s is unavailable to take responsibility for the estate or when the deceased died at least partially intestate. It appoints an applicant as the administrator of a deceased estate.
The deceased must have resided in or owned property in New South Wales. The administrator assumes responsibility for the assets and liabilities of the deceased estate. Asset holders will generally release assets to the administrator only after sighting a Letter of Administration.
Where there is a valid will appointing an executor, a Letter of Administration is only required when the nominated executor/s is/are unable or unwilling to act. In that event, an application for a Letter of Administration with the Will Annexed is made to appoint an administrator.
Who can apply for a Letter of Administration?
The Probate and Administration Act 1898 lists the categories of people eligible to apply. The Court will issue a Letter of Administration to a competent adult who is a potential beneficiary or creditor of the estate. This is usually a close relative of the deceased such as a spouse or de facto partner or an adult child.
An eligible beneficiary living outside Australia cannot apply for a Letter of Administration. If the only eligible beneficiary lives overseas, they must appoint a solicitor to apply for a Letter of Administration in their stead.
If there are several eligible parties, they can either apply jointly, or one beneficiary can apply with the written endorsement of any other potential beneficiaries. If the parties cannot agree who should apply for the grant, the Court assesses the competing claims. It generally makes the grant to the deceased’s closest living relative. If that process is likely to delay administration of the estate, the Court can appoint a special administrator with limited powers temporarily pending the choice of an actual administrator.
If no relative is willing to apply, the court can appoint the NSW Trustee & Guardian, or accept an application from another interested party (e.g. an estate creditor).
What are an Administrator’s Duties?
The administrator is authorised to manage and protect the deceased estate according to either:
- the deceased’s will; or
- if the deceased died intestate, according to the laws of intestacy in NSW.
The administrator is responsible for gathering and valuing the estate’s assets and discharging it’s debts. They lodge a final tax return for the deceased, establish any discretionary trusts according to the will, and protect the estate (e.g. defending it from Court challenges).
How long will an application take to process?
An application may be filed with the Court up to six months after the deceased’s death. A late application may be accepted if:
- there is a reasonable excuse for the delay, and
- the parties agree to the appointment of the administrator.
The administration of the estate is usually completed within a year of the date of death. However, complexities in the administration, or unreasonable delay by the administrator, may cause delays. If the Court considers that the delay is unreasonable, it may replace the administrator.
An application for a Letter of Administration may take several months to process if the application is filed during a busy period.
Contact us for advice, support and assistance in applying for a Letter of Administration.