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13 December 2012 My partner has passed away without leaving a Will… what should I do?

By Angela Harvey, Partner and Phillip Briffa, Solicitor


In Brief

Where a person dies without a valid Will they are said to have died 'intestate'. In these circumstances the Supreme Court will grant Letters of Administration instead of the Grant of Probate. This article discusses who may apply for Letters of Administration and the procedure involved.


Letters of Administration

Where a person dies without a valid Will they are said to have died 'intestate'.

Intestacy may also occur where:

  1. the deceased has a Will but no executor is named in the Will;
  2. the Will is invalid; or
  3. the executor named in the Will has renounced Probate or is not willing or capable to act as executor.

 In these circumstances the Supreme Court will grant Letters of Administration instead of the Grant of Probate.
 
The following people may apply for Letters of Administration:

  1. a Spouse of the deceased, or next of kin, or both;
  2. a person who is fit to be trusted, or complies with the direction of the Court;
  3. any person, whether a creditor or not, that the Court thinks fit.

People applying for a grant of Letters of Administration are well advised to instruct a Wills and Estates lawyer to assist with the preparation and lodging of the application.

Probate

Conversely, where the deceased has died with a valid Will it is the duty of the executor named in the Will to call in the deceased assets, pay the liabilities of the estate and distribute the assets in accordance with the terms of the Will.
 
A Grant of Probate is recognition by the Supreme Court that a Will is a valid Will, and is the last Will of the deceased, and that the executors are those entitled to distribute the assets of the Estate. Once probate has been obtained the assets of the deceased are vested in the name of the executor (and not the NSW Trustee).
 
As with Letters of Administration, executors typically appoint Wills and Estates lawyer to assist with preparation of the probate application.

Procedure

The procedure for obtaining a grant of probate and letters of administration is similar in many respects. Generally the steps involved include the following:

  1. Publish notice of intention to apply for grant of probate or letters of administration in a newspaper circulating in the district where the deceased resided or otherwise in a Sydney daily newspaper. The purpose of the advertisement is to notify creditors of the death of the deceased to enable them to make a claim on the estate.
  2. Once the advertisement is published, the executor (or the lawyers representing the executor) will receive a copy of the advertisement together with the date the advertisement was published (known as the tear sheet).
  3. The application for probate or letters of administration is then filed at the Supreme Court Registry no sooner than 14 days after the date of publication of the advertisement. The application, which takes the form of an affidavit of the applicant, is filed together with the following documents:
    1. the original will (if any);

    2. the death certificate; and

    3. the tear sheet, evidencing that the advertisements has occurred.

  4. Assuming the application is drafted correctly the grant of probate or letters of administration is then issued and the estate can be administered in accordance with the law.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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