1. Letters of Administration​
   
2. Purpose of a Grant of Administration​
   
3. Need for a Grant of Administration​
   
4. Time frame to apply for a Grant of Administration​
   
5. Who can apply for a Grant of Administration​
   
6. Caveats and contested proceedings​
   

​​1. Letters of Adm​​​​inistration​

A grant of Letters of Administration is a legal document issued by the Court, which allows the administrator(s) to manage and distribute the deceased's assets.

There are two distinct types of applications for Letters of Administration:

1. Letters of Administration – the deceased died without leaving a will (died intestate)
2. Letters of Administration with the Will annexed – the deceased left a Will but there is no executor available to apply for a grant of probate. For example, if the will did not name an executor, or the sole executor has died or is otherwise unwilling or unable to act. A separate fact sheet is available in relation to applications for Letters of Administration with the will annexed.

Uncontested applications for Letters of Administration are determined by a registrar on the papers (in chambers). There is no hearing in court.

The Court will not make a grant of Letters of Administration if there are no assets held in NSW to be administered.

2. The purpose of a G​​​rant of Administration​

The administrator of an estate is responsible for collecting the deceased's assets, paying any debts and then distributing the assets to the beneficiaries. The reason that the Court issues a grant is so that the administrator can take that grant to persons that currently have the assets of the estate or that are debtors of the estate (such as banks and retirement villages that are holding bonds) and require them to transfer the assets or monies to the administrator (or to such other persons as the administrator may nominate).

If a deceased person owned assets in more than one state or country it may be necessary to apply for a grant in each place where assets were located. However, if a deceased had assets in different states of Australia or in certain countries, you may apply for a resealing of the original grant. A separate fact sheet is available in relation to applications for Reseals of Grants.

3. Need for a Gra​nt of Administration​

Depending on the type, size and value of the assets located in NSW it may not be necessary to obtain a grant in NSW. There is no statutory requirement to obtain a grant of representation in every case. Some asset holders will often release modest amounts without the need for a grant being made provided you can establish that you are the next of kin.

If the deceased owned real estate solely in his or her name, or owned real estate as tenants in common with someone else, then a grant will be required to deal with the asset. If however the deceased was a joint tenant of real estate with someone else that survived them, then the real estate passes automatically to the survivor and it is not necessary to obtain a grant, although you will need to complete and file documents with the Land Titles Office to ensure that the certificate of title is updated. If you are uncertain whether land was held as tenants in common or as joint tenants you can find this out from the Land Titles Office. See http://www.lpi.nsw.gov.au/ for more information.

If the deceased owned no real estate that requires a grant to be obtained then you should consider approaching the asset holders of the other assets (eg banks, superannuation funds, insurers) to determine if they are willing to transfer the assets without a grant being made. It may be possible to have the asset holder transfer the assets by allowing them to see the original death certificate and by the person claiming signing a declaration of their entitlement and/or an indemnity in favour of the asset holder (in case someone else subsequently makes a claim). This option should be considered particularly if you are the deceased's surviving spouse or defacto spouse or are otherwise the sole remaining next of kin. Each asset holder may apply different criteria and requirements for releasing assets. The proceeds of life insurance and superannuation generally do not form part of the estate, however this will depend on the terms of the relevant policy. You should however verify with the relevant insurance company or superannuation trustee whether they will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance funds.

4. Time frame to a​pply for a Grant of Administration​

The Supreme Court Rules 1970, Part 78 rule 16 specifies that an application for a grant should be filed within 6 months from the date of death of the deceased. If it is filed any later an explanation must be given to the court explaining the delay. This can be done by either including an explanation in the affidavit of the administrator or lodging a separate affidavit of delay.

There is no prescribed or approved form for an Affidavit of Delay, however you can use and adapt UCPR Form 40 at http://www.ucprforms.justice.nsw.gov.au/. Head the document "Affidavit of delay" and set out the explanation for the delay in numbered paragraphs.

5. Who can apply for a Gr​​​ant of Administration​

1. Spouse or defacto spouse​

The most common applications for a Grant of Administration are made by the surviving spouse or defacto spouse.

To be a defacto spouse, entitled to share in the estate, the relationship must have been registered under the Relationships Register Act 2010, or be a de facto relationship that:

• had been in existence for a continuous period of 2 years, or
  
• had resulted in the birth of a child.
  

A sole spouse or defacto spouse is entitled to the full estate of the deceased if the only children of the deceased are children that the deceased and applicant had together.

If there are children of the deceased that are not children of the spouse or defacto spouse (i.e. children from another relationship) then those children may be entitled to a share of the estate, and if they are adults they may themselves also be entitled to apply for a Grant of Administration. This will depend on the value of the estate. If the estate is valued over a specified amount, known as the statutory legacy, then such children are entitled to one half (to be shared amongst such children if there are more than one) of the value of the estate over the statutory legacy. The spouse or defacto spouse is entitled to the statutory legacy plus one half share of the value over the statutory legacy. The value of the statutory legacy depends on when the deceased died and can change each quarter depending on changes to the Consumer Price Index. The statutory legacy is calculated from a base figure of $350,000 that was set in 2005. The method of calculating the appropriate statutory legacy is set out in section 106 of the Succession Act.

If there is a legal spouse and a defacto spouse, or there is more than one defacto spouse meeting the criteria under the Succession Act, then such spouses are entitled to share equally in the estate (subject to any entitlement of children who are not also children of one the spouses as noted above) and they are all entitled to apply for a grant of administration. If such spouses cannot agree to either apply jointly or that one applies with the consent of the other(s), then they should each seek independent legal advice.

2. Statutory order of eligible relatives (intestacy rules)​

Chapter 4 of the Succession Act 2006 (NSW) sets out the order in which eligible relatives will inherit the estate of a deceased person. Generally only someone who is entitled to all or a share of the estate is entitled to apply for Letters of Administration.

In basic terms, the order of relatives who can inherit is:

• Spouse(s) only (includes any de facto and registered relationship. There may be more than one spouse), but only if there are no children who are not also children of the spouse(s) entitled to apply.
  
• Spouse(s) and children, if there are children of the deceased who are not the children of the spouse(s) who are entitled to apply. The spouse(s) share with all children of the deceased in accordance with the statutory regime at Part 4.2 of the Succession Act 2006
  
• Children (including the "issue" of any predeceased children. Issue includes all lineal descendants where a child takes if their parent has died)
  
• Parents
  
• Brothers and sisters (including the "issue" of any predeceased brother or sister. This includes half-siblings and siblings who are adopted by the parents of the sibling, but it does not include step-brothers or step-sisters)
  
• Grandparents
  
• Aunts and uncles (including the "children only" of any predeceased aunt or uncle. Does not extend to "issue")
  

Each 'category' must be exhausted before moving on to the next and once an eligible relative is found, the process stops.

If there is more than one person in a "category" entitled to a share of the estate then those persons can apply jointly for a grant of administration (for instance the children of the deceased).

If only one or some of several persons entitled to share in the estate apply, they will need to obtain the consent of all persons who not applying, or they need to serve notice of their intention to apply. A person who is not sui juris (over 18 yrs and have mental capacity) cannot consent, however the legal guardian of a minor or the financial manager of an incapable person may consent on their behalf. If the parental guardian is applying on behalf of the minor however, they cannot consent and no person can be appointed who can provide that consent. In cases where consents cannot be obtained the Court requires the applicant to provide an administration bond and two sureties to cover the share of the estate of those beneficiaries who have not provided consent (or who are not capable of providing consent). If an administration bond cannot be obtained parties should comply with the Court's Protocol for Minors, which was announced by Lindsay J on 6 July 2018.

3. Standing to apply​

Generally only persons who are entitled to a share of the estate are entitled to apply for administration. Applications made by a relative who is not entitled themselves to a share of the estate "on behalf of" a relative that is entitled but does not want to make the application themselves (such as the child of a deceased on behalf of the surviving spouse/parent) will not be granted. A grant may be made to the attorney of a person entitled, if the person entitled lives outside of NSW. A grant may also be made to the legal guardian of entitled children who are under 18, or to the guardian or manager of a person who is entitled but because of a mental incapacity is unable to apply themselves. Grants to attorneys, guardians or mangers are limited grants and are expressed to be "for the use and benefit" of the person entitled, and limited until they are able to apply for and obtain a grant.

A creditor of the estate may be able to apply, but normally only if none of the next of kin who are entitled under intestacy apply themselves. Such applications are very rare and are not dealt with in this fact sheet. If you are a creditor thinking of making such an application it is recommended that you seek independent legal advice.

6. Caveats and contested proceedings​

A person with an interest in the estate of a deceased person can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate. See Supreme Court Rules Part 78 Division 10. A caveat remains in force for 6 months from the date on which it is filed. There is an approved form for a caveat (UCPR form 141) and a filing fee is payable. The caveat must be served on any known applicants or potential applicants for a grant of Probate or Administration of the estate. The Court will not stop making a grant in relation to a pending application simply because someone with a potential interest writes a letter or calls the registry. The reasons a caveat is filed include where someone wants to challenge the validity of a will, which may be an informal will or a will that appears to be valid but where there is a claim that the will is a forgery or that there is doubt as to the testamentary capacity of the testator, or a claim that the will was executed under undue pressure. There may be circumstances where there are two or more possible wills naming different executors. A person intending to apply for a grant of Administration that wants to proceed with that application can apply to the Court for a caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to whether there is a valid will or not. See Supreme Court Rules Part 78 rule 71. Alternatively if there is doubt as to the validity of a will contested proceedings can be commenced for probate to be granted in solemn form. Such proceedings are commenced by statement of claim. See Supreme Court Rules Part 78 rule 72. An application for a grant in solemn form is determined by a Judge rather than a registrar. If there is a prospect that an application will be contested it is recommended that the applicant seeks independent legal advice.

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