Letters of administration are a grant from the Supreme Court of NSW.
They give a person, called the administrator, authority to deal with the estate of someone who died without a valid will.
The administrator then shares the estate under the rules in the Succession Act 2006 (NSW).
When letters of administration are needed
Letters of administration are needed where:
- There is no will.
- There is a will, but it is not valid.
- The will names no executor.
- The named executor will not act or cannot act.
Where there is a valid will but no executor can apply, the grant is called letters of administration with the will annexed.
This article deals with the case where there is no will.
Who can apply
The most common applicant is the spouse or de facto partner.
A de facto partner must show the relationship was registered, lasted at least two years without a break, or produced a child.
Any person entitled to a share of the estate under the rules for dying without a will can also apply.
The Court follows this order.
- Spouse or partner, where there are no children from another relationship.
- Spouse or partner and children, where some children are not the partner's children.
- Children, and the children of a child who has died.
- Parents.
- Brothers and sisters, and the children of a brother or sister who has died.
- Grandparents.
- Aunts and uncles, and the children of an aunt or uncle who has died.
A relative who is not entitled cannot apply on behalf of an entitled person who does not want to apply.
NSW Trustee and Guardian can also act as administrator.
Consents, notice and bonds
People in the same group can apply together.
If only some of them apply, the applicant must either:
- Obtain written consent from the others, or
- Serve them with notice of the application.
A person under 18, or a person without capacity, cannot consent for themselves.
Where consents cannot be obtained, the Court may require an administration bond with two sureties to protect the shares of those people.
The Court has a protocol for minors where a bond cannot be obtained.
The steps
- Confirm there is no valid will. Search personal papers, any solicitor the person used, banks and NSW Trustee and Guardian.
- Identify the assets in NSW and how land was held.
- Work out who is entitled under the order above.
- Obtain consents or prepare to serve notice.
- Publish a notice of intended application on the NSW Online Registry.
- Wait at least 14 days.
- File the application online, with the administrator's affidavit.
- Answer any requisitions from the Court.
- Once the grant is made, collect the assets, pay debts and distribute the estate under the rules.
The application should be made within six months of the death. A later application must explain the delay in an affidavit.
What to watch for
Where people get caught
Applying without the consent of others entitled
The Court needs consents or proof of notice.
Getting the order of relatives wrong.
A later group receives nothing while anyone in an earlier group is alive.
Assuming a de facto partner will be accepted without proof.
Sworn evidence of the relationship is required.
Forgetting minors.
A child cannot consent, and a bond or the Court's protocol may be needed.
Leaving a caveat unanswered.
A caveat stops the grant for six months unless it is removed.
Distributing before debts and tax.
Debts must be paid first, and the ATO warns of personal liability where tax is ignored.
The administrator must share the estate under Chapter 4 of the Succession Act
Where there is a partner and a child from another relationship, the partner receives personal effects, a fixed sum set by law and adjusted for inflation, and half of the rest. The children share the other half.
The NSW Government publishes the current figure. It should be checked at the date of death.
Common questions
How is letters of administration different from probate?
Probate is granted to an executor named in a valid will. Letters of administration are granted where there is no valid will or no executor can act.
Can more than one person be administrator?
Yes. People in the same group can apply together.
What if the family cannot agree on who applies?
The Court decides on the evidence. Where a person disputes the application, they may file a caveat, and a judge may need to decide.
Find out who is entitled to apply before you file. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.