My part­ner has passed away with­out leav­ing a Will what should I do?

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.