Probate and Letters of Administration
Where there is a will, it would be an application for the grant of probate. Where you do not have a will, it would be an application for letters of administration. The application is filed in the Supreme Court of New South Wales.
Grants of probate and letters of administration are grants of representation. A grant of representation gives a person the legal right to administer the estate of a deceased person.
Probate is a legal document that certifies that a will is valid and can be acted upon by the executor.
Letters of administration are granted where the deceased has not left a valid will.
Sometimes the grant is issued with a copy of the will annexed where the will cannot be found. Sometimes the grant is issued with the will annexed where the executor is not available and a substitute executor was not named in the will.
In the absence of a will, the spouse, de facto partner or previous spouse of the deceased person could claim the right to administer a person’s estate by filing an application for the right to be granted to him or her.
Some personal and family circumstances can make an application complex, you may wish to call our office to assist. A family disagreement or a minor mistake could cause a lengthy delay in court procedures.
The executor or administrator has a duty to ensure that debts are paid before any remaining assets are distributed according to the deceased’s wishes (where there is a will) or according to the Succession Act 2006 (where there is no will).
Should you consult the Succession Act, you will find categories of eligible relatives. The order of relatives who may inherit a share of a person’s estate are:
- Spouse(s) only, includes any de facto and registered relationship. There may be more than one spouse.
- 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.
- Children, including the “issue” of any predeceased children. Issue includes all lineal descendants where a child takes if their parent has died.
- 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.
- Aunts and uncles, including the children only of any predeceased aunt or uncle, but does not extend to their issue.
A person’s estate includes all property, assets and debts that need to be managed and the remainder or residue is distributed to beneficiaries.
Upon the death of a person, we have found that close relatives go through a process of grieving, stressing over funeral arrangements, wondering if arrangements to look after them are in place and if they must now engage a lawyer. It is often a confusing and difficult time for surviving family.
The cost of legal representation is paid from estate funds.
In the absence of a dispute, a solicitor’s legal costs are as prescribed and capped by Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015.
Current filing fees for a Summons for Probate, Administration or Reseal can be seen on the Supreme Court’s website.
We hope the information in this short piece helps, but it is not intended to be advice. However, in over 20 years of practice experience, I have found that this is information that can help clients consider their first steps with more clarity.
Our office is conveniently located in Epping close to the train station and parking.