Letters of Administration NSW Kit for the NSW Supreme Court (Where a Will Cannot be Located)

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What are Letters of Administration?

Letters of Administration are a legal document that authorises a family representative to manage the estate of a deceased person in accordance with legislation (where the deceased has died intestate, ie., where a Will cannot be located).

If a person passes on without a Will leaving assets in NSW, the family representative may need to apply for Letters of Administration to deal with the estate left behind.

Letters of Administration is a document issued by the Supreme Court of NSW enabling the family representative to deal with the deceased's assets.

Letters of Administration are proof that the person named in the letters is legally entitled to collect and distribute the estate of the deceased.

For example, it allows the deceased's money held in banks, managed funds etc, to be collected, their debts to be paid, and their real estate to be sold or transferred.

Who can act as the Family Representative and apply for Letters of Administration?

This legal document kit can be used where the Family Representative is the deceased's:

✅ Spouse (or de facto spouse); or by a

✅ Child of the deceased (where no spouse or de facto spouse is alive).

This legal document kit is not suitable if the deceased left:

❌ Multiple spouses (a spouse and de facto spouse or multiple de facto spouses), including where the deceased has;

❌ A child with two or more people.

Letters of Administration CTA (cum testamento annexo meaning with the Will attached)

To confuse matters Letters of Administration can also be granted CTA (cum testament annex), that is, with a Will attached.

❌ This legal document kit is not designed to cover a Letters of Administration CTA situation, so if it applies we recommend you contact our legal team for assistance.

This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.

For this to occur, the Will needs to be incomplete, such as is the case where:

❌ No Executor is named; or

❌ The appointed executor has since become incapacitated, or does not wish to act as executor.

Letters of Administration are not mandatory for all Estates

It is not always necessary to apply for Letters of Administration or a Grant of Probate when someone passes away.

Often it will depend on what assets have been left behind by the deceased, and the requirements of bank or financial institutions holding those assets.

It is always recommended in the situation where the estate does not hold any real estate, that an enquiry be made directly with the banks, etc. holding funds to understand whether or not their standard policy allows for the release of the funds held without the need to first obtain Grant of Probate/Letters of Administration.

Generally each bank or financial institution will set thresholds amounts above which they will insist that Grant of Probate/Letters of Administration are required prior to release of the funds.

Below the bank or financial institution's specifically set unique threshold amount (set at their own discretion) they may release the funds without the need for formal Grant of Probate/Letters of Administration.

If proceeding to distribute an Estate without Letters Of Administration
➲ Family Representatives need to be careful

It is important to understand that Grant of Probate/Letters of Administration also serve as legal authority issued by the Supreme Court which provides indemnification for the Family Representative so long as they act in accordance with the Grant of Probate/Letters of Administration.

If an Estate is distributed without Grant of Probate/Letters of Administration the Family Representatives must be careful to ensure they do not make mistakes which could triggers the possibility of personal liability should estate assets be distributed and subsequently beneficiaries find a Will or challenge the validity of the distribution of the estate, etc.

Publishing Online NSW Letters of Administration Notices a.k.a. NSW Death Notices

Before lodging a summons for Administration NSW with the Court, you must at least 14 days prior, publish a NSW Letters of Administration Notice (a.k.a NSW Death Notice), in other words a Notice of an Intention to make Application for Letters of Administration.

Before publishing an Online NSW Letters of Administration Notice (a.k.a NSW Death Notice) you should use the free public search by the name of the estate to determine whether there is an existing NSW Probate Notice (a.k.a NSW Death Notice), that is a Notice of an Intention to make Application for a Grant of Probate.

Once you have confirmed there is no competing or duplicate application, you can proceed to publish an Online NSW Letters of Administration Notice / (a.k.a NSW Death Notice).

From 1 July 2021, the fee applicable to publish the Online NSW Letters of Administration Notice (a.k.a NSW Death Notice) is $48.

The Letters of Administration NSW Kit includes the following documents:

The following documents will be generated:

⚖️ Summons for Administration;

⚖️ Affidavit of Applicant for Administration;

⚖️ Inventory of Property;

⚖️ Grant of Letters of Administration document;

Where the deceased's de facto spouse is applying or not all of the children of the deceased are applying:

⚖️ Consent to Administration;

Where the applicant was in a de facto relationship with the deceased:

⚖️ Affidavit as to Defacto Relationship; and

Where the deceased had no de facto spouse:

⚖️ Affidavit that Deceased was not in a Defacto Relationship.

Social Media Sharing Image: Courtesy of Philip Graves on Unsplash

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The majority of online Australian Legal Document providers are not law firms!

Whilst it is acknowledged that the legal document templates provided by the majority of [non law-firm] Australian legal document providers will generally have been prepared by lawyers and that the templates they sell are updated from time to time as required by legislative changes.

This does not change the fact that you are not dealing directly with a law firm.

In order to understand what this means from a practical perspective you need to ask the following questions …

What happens?

🧩 If and when you have a legal question?

🧩 If the other party wants to negotiate amendments to the legal document?

🧩 If the legal document does not meet all of the requirements of your specific facts and circumstances?

🧩 If there is a mistake in the legal document?

Lastly, what happens if you are not directly involved in the creation of the legal document?

🧩 What if your accountant, tax agent or financial advisor uses a [non-law firm] online legal document service on your behalf?

To help you answer this question, please read our FAQ: If I create a legal document for my client on your law firm’s website am I giving legal advice or am I a "mere scribe"?

General Answer

A general answer is that online [non-law firm] Australian Legal Document providers are unable to assist clients directly, as they are unable to provide legal advice.

Certain [non-law firm] providers have adopted a business model whereby they earn a substantial ongoing 12 months+ plus referral fee for directing a client to a large directory of law firms who can assist.

This referral fee is charged to the law firm, who may decide to expense it as a marketing cost.

We submit that one way or another, it is ultimately the client who pays for the cost of the referral fee as it increases the cost of doing business for the law firm providing the service to them.

Feedback obtained directly from businesses who have used certain [non-law firm] online services

The valuable feedback we have  obtained is that:

❌ The quality of the online legal documents are basic, non-adaptive templates; such that

❌ The client is more often than not, required to seek assistance from a law firm in order to ensure their legal requirements are met.

As lawyers are required to undertake client interviews and make manual amendments to the legal documents, the final cost ends up much higher than the client could have anticipated, especially when the original online legal document was given away for free or at a nominal cost.

These kinds of business models may not rise to the level of bait & switch, however they may be found to constitute misleading and deceptive conduct.

In our submission, clients appear to be lead to believe that in the majority of cases they will be able to use the standard online documents without the need to engage a law firm to assist, when in actual fact this is not the case.

What are the benefits of purchasing legal documents directly from Blue Ocean Law Group?

When you purchase online legal documents directly from us, we have every incentive to ensure the quality of the online legal documents provided are as high as possible, and that you have all your questions answered.

List of Benefits:

✅ Our law firm already has a copy of your online responses so we can assist quickly and cost effectively.

✅ 1-stop shop. There is no need to wade through a directory of different law firms each time.

✅ Professional Indemnity Insurance (when you engage us for legal advice);

✅ Higher quality automatically tailored legal documents using Embedded Lawyer-Logic;

✅ Deal directly with a law firm, no need for middlemen;

✅ No referral fees built into the business model;

✅ Lower overall legal costs;

✅ Legal document delivered directly from our .law web domain so you know we created the legal document;

✅ Legal Professional Privilege; and

✅ Enhanced Confidentiality.

✅ Blue Ocean Law Group (as far as we are aware) are currently the only Australian law firm providing you with the option to create more than 140+ Personal & Business Legal Documents online using our ⚖️ [Self-Service] and/or [Lawyer-Assisted] services.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a Free Legal Health Check?

What is a Free Legal Health Check? ✅

Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.

How does it work?

1️⃣ Complete our Intelligent Questionnaire:

You will be asked to provide information about your personal and/or business circumstances;

2️⃣ Automated Report:

The process uses inbuilt Embedded Lawyer-Logic™ to help you identify key legal risks + concerns and prioritise solutions.

A customised (jargon-free) report is generated in plain english with actionable recommendations.

3️⃣ Deliver Solutions:

You can then consider the information in your own time, and when convenient, select the most appropriate self-service legal documents from our online 24/7 portal or reach out to our legal team to discuss your options in more detail.

What does it cover?

🧩 Estate planning;

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🧩 Tax structuring;

🧩 Dispute avoidance/resolution;

🧩 Investment properties;

🧩 Business sale/purchase;

🧩 Business financing;

🧩 Co-ownership arrangements;

🧩 Managing staff;

🧩 Commercial terms;

🧩 Websites and intellectual property;

🧩 Regulatory compliance.

Why go through this process?

This is an amazing way to quickly + proactively identify legal risks + opportunities to get your legal affairs in order!

Achieve Zen-like “peace of mind” knowing your legal affairs are in order

Our Buccaneer Package is designed for individuals + includes our constantly expanding library of [Self-Service] personal legal documents.

It is compelling value with pricing at less than $1 per day which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your legal bills!

Our Yachtsman Package designed for business owners includes our constantly expanding library of [Self-Service] personal + business legal documents.

It is compelling value with pricing at circa $3.50 per day [equivalent to the price of a cup of tea or coffee!] which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your personal + business legal spend!

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

What is Embedded Lawyer-Logic + how does it work?

What is Embedded Lawyer-Logic™?

Think of Embedded Lawyer-Logic as your way of gaining 24/7/365 access to the best legal minds in the relevant area of law to guide you to instantly generate high quality legal documents, or an initial draft for review by our legal team.

More than 1000+ Australian lawyers use this industry leading automated legal document generation solution.

Step 1️⃣: Information Gathering

Our intelligent online questionnaire adapts to your answers and only asks relevant questions.

Simply follow the guidance and enter the requested information about your matter.

Step 2️⃣: Document Assembly

The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.

The engine then draws from an enormous body of content to assemble a top-tier quality legal document that’s tailored to your situation + requirements.

Our Embedded Lawyer-Logic™ technology includes numerous quality control checks + automatic error-correction, massively reducing the risk of human error.

Step 3️⃣: Document Delivery

The finished document is then emailed to you in PDF format, ready to print and sign.

Optional: Lawyer Review/Assistance

Your answers to the online questionnaire and a copy of the finished document in both Word + PDF formats are automatically forwarded to our legal team.

If we notice anything out of-the-ordinary we will contact you to discuss.

If you are a subscribed member or opt for paid Lawyer-Assistance, we will use the allocated time to assist to clarify and resolve any questions you may have.

Optional: Full Service

If your matter is complex, high risk or you have never been involved in legal matters before, we highly recommend you opt for our Full Service.

Our legal team will contact you and assist you throughout the entire process.

If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

When should I reach out to speak to your legal team?

Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".

This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.

Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).

Other matters maybe unusually complex, or of such high-value or risk that involving our legal team is the prudent course to take.

For these matters we recommend you select our [Full Service] option.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

What does the Lawyer-Assisted service include?

Your upgrade to our [Lawyer-Assisted] Service includes …

⚖️ Professional Indemnity (Limited Liability) by a scheme approved under Professional Standards Legislation;

⚖️ Access to Professional Fee Funding* / Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee our external legal finance provider);

✅ Allocated Time included to understand your circumstances + objectives, answer your queries + provide legal advice & make recommendations regarding alternative/additional options; and

✅ Create your standardised Legal Document based on your instructions.

Plus [+] Where Appropriate (at no additional charge)

⚖️ Use of proprietary fonts to maximise fraud prevention;

⚖️ Use of our Law Firm Letterhead;

➲  Send your Legal Document for electronic signature/s; and/or

🔒 Application of Trax Print Legal Document Security Technology for Fraud + Litigation Prevention.

* More Information about Professional Fee Funding:

Our firm has partnered with QuickFee and Splitit to provide you with an interest free payment option. While we remain your service provider, the payment method is provided by QuickFee, a specialist payments provider for professional firms.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Is the Legal Documents Portal Secure?

Yes we use the highest grade web-based security available 4096-bit SSL encryption

Our Legal Documents Portal uses 4096-bit SSL encryption.

A Future Proof Security Solution

The following has been extracted from a JScape's website article answering the question: "Should we start using 4096 bit …?"

In case you're curious where we got the idea of 2048-bit encryption keys being safe to use until 2030, check out the NIST Special Publication 800-57 Part1.
In Table 2 of that document, it says 2048-bit RSA keys are roughly equivalent to a Security Strength of 112.
Security strength is simply a number associated with the amount of work required to break a cryptographic algorithm.
Basically, the higher that number, the greater the amount of work required.
A future proof security solution can mitigate the risk of cyber threats.
We know that cyber criminals are always one step ahead of security professionals, so we're not 100% sure 2048-bit keys are going to remain unbreakable before 2030.

How secure is 4096-bit encryption?

It was once said:

It would take the combined processing power of every computer in the world thousands of years to crack 4096-bit encryption.

You could be the weakest link. Be Vigilant!

Hackers will always look for the weakest link, which is usually a person who makes an error which opens up a gap in an otherwise secure system.

In a more general context (outside of encrypted secure website traffic/data) it has also been said:

Data with 4096-bit encryption (only protected by a password) could still be compromised within seconds.
How? Human error.
Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Why does Blue Ocean Law Group℠ use a *.law website domain?

What is a *.law web domain?

⚖️ *.law is a top-level-domain (TLD) that aims to:

Promote trust in the professional legal community by creating a:

✅ Verified;

✅ Exclusive; and

✅ Reserved online space in which only accredited lawyers and law firms can establish a comprehensive digital brand.

✅ Website users can have confidence they are dealing with an authorised and licensed lawyer/law firm.

✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.

All about *.law domain names

Source: join.law - Why *.law?

Creating Legal Docs for clients. Is this giving legal advice?

When you create Legal Docs for Clients. Is this considered giving legal advice? or is your role that of a mere scribe?

If your role is merely that of a "scribe or scrivener" as outlined below it is unlikely you would be deemed to be providing legal advice or engaging in the practice of law.

Caution: Some Online Legal Documents have evolved!

Unfortunately this is not as easy as it once was … when online legal document templates were all static "fill in the blanks" one-size-fits-all templates.

Increasingly, the capabilities + complexities of legal document automation have evolved to cater to an ever widening range of facts and conditions.

Using the complex design + incorporation of what we call Embedded-Lawyer Logic it is no longer possible to avoid the automated tailoring of the online legal document to suit the client's circumstances + legal needs.

They are designed to produce a quality bespoke legal document just like a lawyer does.

The use of Embedded-Lawyer-Logic™ in the online process:

✅ Is now very similar to a client being interviewed by a lawyer;

✅ It drills down to ask the same questions and provide the same options a highly experienced + competent lawyer is required to do.

As a result the draft legal document created now has the potential to vary significantly based on the responses provided by the client.

We have now progressed to the point that the new normal online process is designed to cause your role to fall outside of the role of a "scribe or scrivener" alluded to below.

In the leading case on this issue Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184; 35 WAR 59 (Simmonds J) noted at para. [152] that Brinsden J in Barristers Board v Palm Management Pty Ltd [1984] WAR 101 referred to Re Matthews (1938) 79 P 2d 535, apparently with approval, as follows at para. [108]*:

The court went on to say that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing law in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required and a charge for such services brings it definitely within the term 'practice of the law' [emphasis added].

How to limit your role to that of a "scribe or scrivener"?

Therefore, we strongly recommend that you advise your client to either:

✅ Create the draft legal document themselves + ensure independent legal advice is sought from our legal team prior to negotiation and execution; or

✅ Instruct you to create the legal documents using our Lawyer-Assisted option.

Doing this ensures your role is clearly limited to that of a "scribe or scrivener".

Our legal team will then take the responsibility for reviewing your client's individual circumstances together with the draft legal document in order to provide your client with the relevant legal advice, ensure your client understands their legal position and options, and to propose and make any required amendments to the legal document based on your client's instructions.

What is a "mere scribe or scrivener"?

In Legal Practice Board v Computer Accounting and Tax Pty Ltd [supra]*:

… the court held that work of the mere clerical kind, such as filling out of skeletal blanks or drawing instruments of generally recognised and stereotype forms effectuating the conveyance or encumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, should be generally regarded as the legitimate right of any layman because it involves nothing more or less than the clerical operations of the now almost obsolete scrivener (emphasis added).
(The scrivener was eliminated in England by the 1804 Act.).

The view of the Institute of Chartered Accountants in Australia ... ^

Timely reminder

The 2007 case of the Legal Practice Board v. Computer Accounting and Tax Pty Ltd* serves as a timely reminder to members that there are legislative provisions in each state and territory which prohibit a person who is not a legal practitioner from engaging in legal practice.
This prohibition is mirrored in the Institute’s regulations relating to public practice (regulation 1207).
However, there are differences between the jurisdictions as to how the prohibition is framed.  

Even so, members who use the services of document providers are urged, as a minimum, to:
✅ Use only reputable document providers whose services are backed by competent legal practitioners;
✅ Ensure that they abide by the terms and conditions of the document providers as to the use of the documents and their supply to clients; and
✅ Avoid redrafting of documents to suit the circumstances of individual clients, unless appropriate legal advice is obtained by the relevant parties.

Seek legal advice

The Institute believes that the recent WA case does not require any change to a member's legitimate use of this type of service in accordance with their terms and conditions.
However, if you have any concerns or queries about the use of document providers, you should seek legal advice.

Sources:

* Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184;

^ Extracted from the article: Court case raises issues about preparation of legal documents.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How to Verify a Trax Print Protected Document?

How do I Verify the Authenticity of a Trax Print Protected Legal Document?

You can use any of the following Trax Print Document Verification Methods

1️⃣ Double-Click to Verify the Details of the Document

Note: You can find the Trax Print QR Code on the bottom of the first, last or every page, depending upon the preference set by the author of the document.

✅ By way of example, Double-Click on the below sample Trax Print QR Code within the PDF document:

You will be taken to the TraxPrint.com website and a message similar to the following will appear:

2️⃣ Email to Verify the Contents of the Document

The ability to email a document for automated verification has never been done before.

The Trax Print Email Verification Process

✅ Send an email with the PDF document attached to check@blueocean.law

The Trax Print system checks the Trax Code and compares the entire document to the one that was originally protected.

Trax Print will detect even a one pixel difference within a 1000 page document.

❌ If the PDF document is not authentic a reply email rejecting the document will be send back to you.

If the PDF document is authentic, you will receive a reply email with the following attached:

✅ Certificate of Authenticity (including our law firm details & the timestamp of when the document was Trax Print Protected); + 

✅ The Original Trax Print Protected document.

Try it Yourself

🌊 Email check@blueocean.law with any random PDF document attached (that is not Trax Print Protected).

🌊 Then send a second separate email to check@blueocean.law with one of our Trax Print Protected PDF's attached.

For example:

🌊 Download our Trax Print Protected Brochure called Business Legal Essentials attach it to your email.

🌊 In both cases you will automatically be emailed the results!

Note: Blue Ocean Law Group are also notified if one of our Trax Print Protected Documents is verified.

This enables us to take appropriate action if the verification was not authorised.

3️⃣ Scan to Verify the Contents of the Document

✅ Download the free Trax Print App from the iOS AppStore or Android GooglePlay

Register + Sign-in to the App then ✅ Scan the Trax Print QR Code to Verify.

4️⃣ Drag n' Drop to Verify the Contents of the Document

✅ Drag n' Drop the PDF Document File into the designated area.

You will receive an instant response regarding the authenticity of the document.

This feature is coming soon and we aim to make it available via a dedicated page on our website.

Further Reading: Are your Legal + Identity Documents Securely Trax Print Protected to Provide Fraud + Litigation Prevention? ➲ It's a no-brainer!

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Can I create a Legal Document from my phone?

Yes, you can create a Legal Document from your phone

The below iPhone 12 screen shots demonstrate what we mean by "^anywhere (even from your mobile phone, if necessary)".

iPhone 12: Portrait Mode
iPhone 12: Landscape Mode

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Per Stirpes v. Per Capita estate distribution?

Per Stirpes = by branch = by the bloodline

Per stirpes means “by branch” in Latin, but is commonly understood to mean “by the bloodline.”

If your estate is distributed per stirpes after your death, each branch of your family will receive an equal share of your estate.

Per Stirpes ➲ Example

Imagine that Amy has three children: Brigid, Charles, and David.

At Amy’s death, all three children will receive one third of Amy’s estate ➲ if her estate was set up to pass per stirpes.

Assume that Brigid predeceased Amy, and that Brigid has two children, Eleanor and Fergus.

Now at Amy’s death, Charles and David will still receive one third of the Amy’s estate.

Eleanor and Fergus will each share in what would have been Brigid’s share, so both Eleanor and Fergus will take one sixth of Amy’s estate.

Source: Trust Company Oklahama

Per Stirpes v. Per Capita

These legacy latin legal terms, whilst initially confusing, are very important and can change your childrens' (+ their heirs') inheritance.

The alternative to "per stirpes" is "per capita".

With "per capita" the share of any child beneficiary who dies before you is shared equally among your surviving children ... which means your predeceased child (and consequently, their heirs) would lose their share.

With "per stirpes", in the same scenario, instead of your predeceased child losing their share, it is preserved for their children (if any).

Additional Note:

If the term "per capita by representation" is used (also known as modern per stirpes, American per stirpes), please note that this changes the result of the “per capita" distribution so that it operates the same way as the traditional "per stirpes" distribution described above.

The use of this legal term invokes the concept of a “right of representation”.

This means the heirs of any child beneficiary who predeceases you have the right to representation so they can collect the property originally-intended to go to any predeceasing child beneficiary, so they don't lose their share.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Glossary ➲ Probate / Administration in Australia

Key Terms used in the Grant of Probate or Letters of Administration in Australia

Administrator

A person appointed by the Supreme Court to administer a deceased estate when the deceased has not left a Will, or if they have for some reason the nominated executor is unable to or does not wish to act.

Administrator cta

When "cta" is appended to Administrator, an abbreviation of the Latin phrase cum testamento annexo is being added which translates to mean that the Grant of Administration / Letters of Administration is being made "with the Will annexed".  

This is an unusual situation as generally it is assumed that when an Administrator is appointed there is no Will.

For this to occur, the Will needs to be incomplete, such as is the case where:

❌ No Executor is named; or

❌ The appointed executor has since become incapacitated, or does not wish to act as executor.

When either of the above occur, an application may be made to the Probate Court to appoint someone else.

If the Probate Court approves the application, it grants what is called "Letters of Administration with the will annexed", sometimes written as "Letters of Administration cta’".

Affidavit

An Affidavit is a sworn or affirmed written statement, that is made on oath by a person setting out the facts relevant to their case.

The person making the Affidavit (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths. 

Making a false statement in an Affidavit may subject the deponent to perjury charges.

Affidavit in Support

When an Affidavit is used to support an application to the Court.    

Affinity, Relationship of

Related by marriage.

Annex, Annexe

To attach, add or append.

Commorientes

Latin term referring to when people die together at the same time, and it is uncertain as to who died first.

Consanguinity

Latin term meaning all of the following: "shared blood" or a blood relationship, people who have descended from a common ancestor, the same blood line.  

Can be distinguished from a Relationship of affinity, which is being related to someone by marriage.

Deceased Estate

All the property (both real estate + personal property) a person owns in their sole name when they die.  

The estate of a deceased person is what the deceased has left, whether by their Will or under the statutory rules on Intestacy (applied when there is no Will).

Deed of Family Arrangement

An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.

Devolves, Devolution

The passing of rights, property from one person to another on the occurrence of an event, for example death.

Dispensing Power

The Probate Court has the power to dispense with the traditional formalities required by law to make a valid Will.  

This allows the Probate Court to exercise their discretion to Grant Probate for a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and/or witnessed, according to the traditional formalities required by law.

Executor de son tort

Meaning a person who acted "as if" they were the legally appointed Executor/Administrator, when they were not.

The Latin term "de son tort" means "of his/her own wrong".

The person who does this is liable to account to the beneficiaries and creditors of the deceased estate for any losses caused by their actions.

Financial Statements

Records of all financial transactions during the period of administering the deceased’s estate must be kept by the Executor/s.  

When the administration has been completed the Executor/s then provide each beneficiary with a copy of the financial statements.

Grant of Probate

See Probate.

Originating Process

Documents which are used to commence legal proceedings in a court.

Partial Intestacy

When a Will does not effectively dispose of all of the deceased’s property, or the Will is ambiguously worded such that part of the estate is not capable of being dealt with effectively.

Probate

A process by which the Will or a document alleged to be the Will of a deceased person is proven to be valid according to law.  

A Grant of Probate is an official document certified and issued by the Probate Court as evidence that the Court has recognised and confirmed the authority of the person/s named as Executor/s to go ahead and deal with the deceased estate according to the deceased’s Will, and distribute their assets and property, both real and personal.

Grant of Probate must normally occur before the Executor/s can obtain title to the property forming the deceased estate, that is before “calling in ” the deceased’s assets.

If there is no Will the deceased has died Intestate and in such circumstances an Administrator is appointed and instead of a Grant of Probate they are granted Letters of Administration / Administration.

Probate Court

➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.

Representation

A term more commonly used to refer collectively to Grants of Probate or Administration.

Reseal of Probate

If a deceased had assets in different states of Australia or in certain countries, namely Commonwealth countries where the Queen is the head of state, then it is generally possible to have a Grant of Probate issued by a Court in one jurisdiction recognised in another state or country.

This process of recognising the grant made in the other state or country is called resealing the grant.

NSW Reseal of Probate example:

Not all Grants from other countries can be resealed by the Supreme Court of NSW.

The Probate Court will only reseal Grants made in countries of the "Commonwealth Realm" where the Queen is, or was at the time of the grant, Head of State.

Such countries include the United Kingdom (England, Scotland, Wales and Northern Ireland), New Zealand, Papua New Guinea and Solomon Islands.

Recent grants from the following countries cannot be resealed: Malta, South Africa, Pakistan, India, Sri Lanka, Fiji, Hong Kong or The Republic of Ireland.

If a grant cannot be resealed then it may be necessary to apply for a new Grant of Probate in NSW.

Solemn Form

Sometimes a Grant of Probate cannot be made because there is some issue or dispute about the Will.

Once the issue / dispute has been resolved by the Probate Court it may then issue a Grant of Probate in solemn form.  

The words "solemn form" indicate that Court proceedings have taken place and the dispute is now resolved.