Each State has its own laws governing the administration of the estate of an intestate person. In NSW, the applicable laws are the Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 (NSW). If the deceased was domiciled in NSW and the assets are in NSW then the law of NSW will be the applicable law.
If there are assets in multiple States or Territories, please call AussieLegal on 1300 728 200 to discuss your options.
Applications are filed at the Probate Office of the Supreme Court of NSW (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 6 working days of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 3 working days.
When intestacy occurs
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate.
Do I need to obtain letters of administration?
Not necessarily. The main reason that a grant of letters of administration is required is that some organisations which hold assets of the estate will not release them to the administrator for distribution without sight of a grant of representation from the Supreme Court. You will need to make a list of everything the deceased owned or was entitled to and then make contact with the financial institutions concerned to establish whether they require a grant. This will be more relevant for smaller estates. For larger estates comprising real estate, a grant of representation will almost certainly be required.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
Section 63 of the Wills Probate and Administration Act 1982 sets out who can be appointed as an administrator. The Court can appoint a spouse (Including de facto), one or more of the next of kin or the spouse together with one or more of the next of kin. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
The role of the administrator
On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below. The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that 6% of the matters dealt with by the probate registry of the Supreme Court in NSW in 2003 involved applications made in circumstances of intestacy. The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances. The rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. Since the intestacy provisions of the Succession Act 2006 became law in 2010, there are different provisions for each of 2 situations:
where the intestate died prior to 1 March 2010 and
where the intestate died after 1 March 2010.
For the purposes of this article, we will address only situations where the deceased died after 1 March 2010.
Intestate died after 1 March 2010
The following summarises the main changes to the intestacy provisions under the Succession Act 2006, Div 4:
beneficiary needs to survive the intestate for 30 days – Succession Act s 107;
Now includes domestic partner of same or different sex
Single Spouse, No Issue
1 spouse, no issue: entire estate goes to spouse: s111
Single Spouse, Issue
spouse + issue of spouse: entire estate goes to spouse: s112
spouse + issue not of spouse: spouse inherits effects; statutory legacy; ½ remainder: s 113
if one spouse survives they may acquire any of the property of the deceased by election (see s 115, s 116, s 117, s 118, s 119, s 120, s 121), notice of which would usually be given to a personal representative and other beneficiaries (see s 118)- previously spouse could only elect to take the shared home;
Multiple Spouses, No Issue
multiple spouses can share a legacy: s 122 (see: s 106 and Division 3);
Multiple Spouses & Issue
Issue of spouses – the spouses share the estate: s 123
Issue not of spouses – spouses entitled to a statutory legacy ($350,000 CPI adjusted), ½ remainder: s 124, issue receive remainder: s 127
Children of Intestate
Where there are issue who are issue of the surviving spouse, the spouse is now entitled to the whole estate: s 112;
Spouses survive - children will only be included in the inheritance if they are not issue of a surviving spouse (and only if a part of the estate remains after the spouses’ entitlements are satisfied) – see s 127 (2).
Entitled children who predecease the intestate who leave issue – allowance must be made for the issue’s presumptive share: s 128(4)
Adopted children are equal to natural children
Other Relatives - No Spouse, No Issue
if the intestate dies without a spouse or issue, the distribution pattern is similar to the previous law except that first cousins of the deceased are now entitled to benefit – Pt 4.3, ie.
Brother or sisters and any issue of siblings;
Aunts and uncles and
First Cousins (new provision in Succession Act).
Relative may take in separate capacities – eg. child of deceased maternal aunt, paternal uncle: s 132
estates of indigenous people may now be distributed according to indigenous customs (via distribution order: s 134) – Part 4.4
Petitioners to Crown
Categories of petitioners to the Crown for waiver of its right to the intestate’s estate have been expanded to include dependents, persons with just or moral claim, organisations (eg. charities) whom the intestate might reasonably be expected to have made provision and trustees of such persons or organisations – s 137.
Can I apply for Letters of Administration myself?
Yes. AussieLegal offers a number of legal kits that are specifically designed to help family members make a personal application and save thousands in legal fees:
Letters of Administration Plus $1,250.00
Independent solicitors and paralegals will do all the hard work and prepare all the statutory forms and affidavits to enable you to make the application directly to the Supreme Court.