-
Time limit
You must apply for Letters of Administration within six months from the date of death, unless there is a reasonable explanation for the delay. If you apply after six months, you will need to file an affidavit of delay at the Supreme Court of NSW.
Letters of Administration is a court order made by the Supreme Court of NSW which allows the administrator (the person who is appointed by the court) to distribute the assets of the deceased who died without a valid will (intestate), and left assets in NSW.
If the deceased person died intestate in NSW and owned assets (not including assets owned jointly with another person) the law determines who will receive the assets of the estate. This is commonly known as the 'rules of intestacy'.
When a person dies without leaving a will they die 'intestate'. Under the rules of intestacy, the surviving spouse of the deceased will receive the whole of the estate unless the deceased has children.
| Where the deceased leaves... | Who is entitled |
|---|---|
| A spouse and child from the relationship | The spouse is entitled to the whole of the estate. |
| A spouse and child from a previous relationship. | The spouse is entitled to receive:
All of the deceased person's children, including children from previous relationships and from the current spouse, whether they are from a previous relationship or from the spouse, are entitled to equal shares of the other half of the remainder of the estate. Children who are not legally the children of the deceased, for example step children, are not included. |
| More than one spouse | The spouses are entitled to equal shares of the estate. There may be more than one spouse if the deceased was married and had a de facto spouse or more than one de facto spouse. |
| Children only | The children are entitled to equal shares of the whole of the estate. This includes adopted children, but not step children. If a child of the deceased has already died leaving children (grandchildren of the deceased), the grandchildren are entitled to their parent's share. |
| No spouse or children | The deceased person's parents are entitled to equal shares of the whole of the estate. |
| No spouse, children or parents | The deceased person's full and half blood brothers and sisters are entitled to equal shares of the whole of the estate. If the deceased person's siblings died leaving children, then the deceased person's nephews or nieces are entitled to the share their parent would have received in the estate. |
| No spouse, children, parents, brothers or sisters | The deceased person's grandparents are entitled to equal shares of the whole of the estate. |
| No spouse, children, parents, brothers, sisters or grandparents | The deceased person's full and half blood aunts and uncles are entitled to equal shares of the whole of the estate. |
| No spouse, children, parents, brothers, sisters, grandparents, aunts or uncles | The deceased person's first cousins are entitled to share equally in the share that their parent would have been entitled to. |
| No spouse, children, parents, brothers, sisters, grandparents, aunts, uncles or cousins | The State government is entitled to the whole of the estate. |
A grant of administration will only be made to someone who is entitled to the whole of the estate or to a share of the estate. If the only person entitled to the estate lives outside Australia, a grant of administration may be made to the attorney (under Power of Attorney) of that person.
If you don’t want to apply for Letters of Administration, you can ask NSW Trustee & Guardian to make this application.
The grant is usually made to the deceased's 'next of kin', which is the deceased's closest relative.
The Court may grant administration to:
- the spouse of the deceased
- one or more of the next of kin
- the spouse jointly with other relatives.
If there is no next of kin or none that are appropriate or willing to apply for the grant, then the Court may grant administration to:
- NSW Trustee & Guardian, or
- any other person the Court thinks fit.
A spouse is a person who was either married to the deceased or who was in a 'domestic partnership' with the deceased.
A domestic partnership is a relationship between the deceased and another person that is a 'registered relationship' or a de facto relationship that has been in existence for a continuous period of at least two years or has resulted in the birth of a child. This includes same-sex relationships.
A registered relationship is a de facto relationship that has been registered with the NSW Registry of Births, Deaths and Marriages or a similar registry in another state or territory.
If there is more than one person entitled to a share of the estate under the rules of intestacy, they can apply jointly for a grant of administration or the person applying should obtain written consent (in an affidavit) from all other people entitled to apply.
See Step by step guide - Applying for Letters of Administration
A beneficiary under a will may apply for Letters of Administration with the will annexed if the deceased had a valid will but:
- there is no executor named in the will
- the executor died before the deceased or before applying for probate
- the executor has renounced probate
- the executor is unable or unwilling to act, or
- the executor is outside Australia and has appointed you as their attorney to apply to administer the estate (while the executor is outside Australia).
If the Court grants Letters of Administration with the will annexed, the administrator must distribute the estate according to the deceased's wishes in the will and not under the 'rules of intestacy'.
If the deceased owned property in NSW and you have obtained a grant of Probate or Letters of Administration outside of NSW, you will need to apply to the Supreme Court of NSW to reseal the grant before you can deal with the property in NSW. This means that the grant will be recognised in NSW.
Not all grants from other countries can be resealed by the Supreme Court of NSW. The Court will only reseal grants made in countries of the 'Commonwealth Realm'. This includes New Zealand, Papua New Guinea, Solomon Islands and countries within the United Kingdom; Scotland, England, Northern Ireland and Wales.
Before you file your application, you can check with the Supreme Court Probate Office if you are unsure whether the grant you have obtained from another Commonwealth country can be resealed in NSW.
The Supreme Court of NSW will only reseal a grant if the deceased owned property in NSW.
If you live outside of NSW, you may choose to appoint a power of attorney in NSW or a lawyer in NSW to make an application on your behalf.
Share with
Facebook
Twitter
LinkedIn