Letters of Administration is an order of the Supreme Court of New South Wales which appoints an individual (known as an “administrator”) as the legal personal representative of a deceased person’s estate, in circumstances where:
- The deceased died intestate; or
- The deceased died leaving a valid Will, however, the executor appointed under the Will has died or has survived the deceased and has refused to apply or there is no executor available under the will to apply for a Grant of Probate (i.e. none of the executors are available to administer the estate).
The effect of this order is to formally authorise the administrator to collect and distribute the deceased person’s assets, pay their liabilities and distribute the estate among the beneficiaries.
What does dying ‘intestate’ mean?
When a person dies without a Will, that person is considered to have died “intestate”.
What are the different types of applications for Letters of Administration in New South Wales?
Two types of applications for Letters of Administration include:
- Letters of Administration where the deceased dies intestate; and
- Letters of Administration with the Will Annexed, where the deceased left a valid Will, however, the executor appointed under the will has died or has refused to apply.
Who can apply for Letters of Administration?
Generally, the following persons can apply for Letters of Administration:
- If a person dies intestate – generally the person(s) with the majority interest in the estate can apply, provided they survive the deceased by 30 days. This may be the person’s closest surviving relative, but depends on factors including who is entitled on intestacy and whether those individuals are willing and capable to act as administrators (special principles apply where minors or incapacitated persons are entitled to the estate); or
- If a person dies leaving a valid Will but all executors appointed under the Will have died or are otherwise unable to act as executor – generally, the beneficiary(ies) named in the Will with the majority interest in the estate can apply, provided they survive the deceased by 30 days.
What is the role of an administrator?
The administrator’s role is to manage and protect all assets of the deceased’s estate until they are distributed. If the deceased died intestate, the administrator is responsible for:
- Making searches for any documents that may embody the testamentary intentions of the deceased. This includes through the deceased’s possessions and digital devices, with previous solicitors, and banks holding accounts for the deceased. Legal advice should be sought on those documents if they are located even if they do not appear to have been signed by the deceased and witnessed;
- Ascertaining the assets of the deceased at the date of death;
- Ascertaining the liabilities of the deceased at the date of death (including any tax liabilities);
- Keeping accurate records of how the deceased’s estate has been managed; and
- Identifying who the entitled persons are upon distribution of the estate in accordance with Chapter 4 of the Succession Act NSW (2006) and administering the estate in accordance with those provisions.
Is it necessary to apply for Letters of Administration if the Deceased did not leave a valid Will?
A person may need to apply for a Grant of Letters of Administration if the asset holders of a deceased person’s estate require this to collect, sell, or transfer those assets. Examples include:
- If the deceased owned real estate in their personal name and was the sole registered proprietor of that property;
- If the deceased owned real estate in their personal name and was a registered proprietor of that property as tenants in common with another individual;
- If the deceased held bank accounts and the bank requires a Grant of Letters of Administration to release the account proceeds;
- If the deceased had a refundable accommodation deposit (RAD) with an aged care facility; or
- If the estate was insolvent and someone needs to be formally appointed to represent the estate to deal with creditors.
For more information, please contact our experienced Probate & Estate Administration solicitors on (02) 9525 8100 for advice on the process of applying for a Grant of Letters of Administration.
Written by Aimee Collantes & Jessica Calleja