The loss of a loved one can be an overwhelming and emotional time, however, the process of administering that loved one’s estate does not need to be.

The first step in administering a person’s estate is to obtain a death certificate. This process will generally be facilitated by the funeral home assisting with the deceased’s funeral and will be issued approximately 30 days after the deceased’s funeral.

Once the death certificate has been received, steps can be taken to begin the administration of the estate. When administering a person’s estate after they have died, there are a number of legal steps that need to be taken, depending on the following:

1. Whether the deceased has left a will; and

2. The nature and value of the assets that comprise the deceased’s estate.

Is there a will and what happens if there isn’t one?

In the event the deceased has left a valid will, the proper application to be made to the Supreme Court of NSW is an application for a grant of probate. This is an application that is made by the executor or executors appointed under the will.

The grant of probate is an order of the Supreme Court of NSW which confirms that the will is valid and permits the executor to distribute the assets of the deceased.

Where the deceased has not left a will, the proper application to be made to the Supreme Court of NSW is an application for letters of administration. Where a person has not left a will, their estate will be distributed in a prescribed way pursuant to the ‘rules of intestacy’ set out in the Succession Act 2006 (NSW) (the “Act”). Generally, only people who are entitled to a share of the deceased’s estate will have standing to apply for the grant of letters of administration.

The grant of letters of administration serves as an official recognition that the next of kin has the right to administer the estate in accordance with the statutory rules of intestacy.

Chapter 4 of the Act sets out the order in which eligible relatives will inherit a person’s estate. Briefly, the order of relatives who may inherit under intestacy are as follows:

1. The deceased person’s spouse (s111 of the Act), however, if the deceased person had children who were not also the children of the spouse, then the spouse and the children will share the deceased’s estate pursuant to a statutory regime set out in Part 4.2 of the Act (s113 of the Act).

2. Where there is no spouse, the deceased’s children will receive the deceased’s estate, and where there is more than one, they will share the estate equally. If a child of the deceased has predeceased the deceased leaving their own children, those children will be entitled to the share their parent would otherwise have been entitled to had they survived (s127 of the Act).

3. Where there is no spouse or children, the estate will pass to the deceased person’s parents (s128 of the Act) and if they have predeceased the deceased, the estate will pass to the siblings of the deceased (s129 of the Act).

4. In the event there is no spouse, no children, no parents and no siblings, then any surviving children of the deceased’s siblings (i.e. the deceased’s nieces and nephews) will be entitled to the share their parent would otherwise have received (s129 of the Act).

5. If the above categories are exhausted, the estate will pass to any surviving grandparent of the deceased (s130 of the Act) or to the deceased’s aunts and uncles (or their children if that aunt or uncle has also died leaving children) (s131).

6. If each of the above categories are exhausted, then the estate will pass to the State.

When might a grant not be necessary?

In New South Wales, the right of survivorship is a legal principle that applies to joint ownership of property. Pursuant to that principle, where a person holds an asset jointly with another person, on the death of the joint tenant, the property automatically passes to the surviving joint tenant. This means that property held by a deceased person jointly with any other person will not form part of their estate and you will not be required to obtain a grant from the Court for that asset.

In the event a person holds any piece of real property as tenant in common with another person, then it will form part of the deceased’s estate and it will be necessary to obtain a grant from the Supreme Court of NSW to deal with that asset.

A grant of probate or letters of administration will also not be required where the assets are under a certain threshold. For example, if the deceased only held a bank account with a balance under $50,000, the bank may not require a grant of probate and may release such funds to the executor or next of kin. The threshold varies between banks and other institutions.

The Application Process

Once it is determined whether a grant is required, the application can be made with the Supreme Court of NSW. Since August 2023, most applications are now required to be made online through the NSW Supreme Court website.

The Supreme Court Rules 1970 (NSW) Part 78 Rule 16 requires an application to be made within 6 months of the date of death of the deceased. If the application is not filed within this time period, the Court will require an explanation as to the delay.

There are a number of documents that comprise the application for probate, including:

1. The original will;

2. Notice of Intended Application for Probate (which will automatically be published once the application is filed);

3. Summons;

4. Affidavit of Executor, including the inventory of the estate.

The Affidavit of Executor is required to include certain information regarding the deceased, their estate and those entitled to the estate pursuant to the will.

The standard application for letters of administration will include the following documents:

1. Notice of Intended Application for Administration (which will similarly be published automatically once the application is filed);

2. Summons;

3. Affidavit of Administrator, including an outline of the searches undertaken to locate a will for the deceased;

4. Affidavit as to the relationship status of the deceased.

Once the documents comprising the application are finalised and signed, the application can be lodged with the Court.

The Court will assess the application. Should the Court require any further information it may issue requisitions to allow the applicant the opportunity to provide that information. Once the Court is satisfied the grant of probate or letters of administration will be issued.

Once a grant has been issued with respect to an estate, the executor or administrator is authorised to commence calling in the assets of the estate and attending to the administration.

Navigating the legal and administrative steps following the passing of a loved one can be challenging, particularly during such an emotional time. Whether you need guidance on applying for probate, letters of administration, or understanding your entitlements under the rules of intestacy, our experienced team is here to assist.