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"James was able to assist with my parents’ Will dispute. Even though he is in Brisbane and I am on the Gold Coast, it was easy to communicate and put our case together. James always responds quickly, is very efficient and continues to keep me well informed of any progress. I have no hesitation in recommending James." [Will dispute - Qld]
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An up-and-coming, innovative firm that does things differently. Blue Ocean takes an interdisciplinary approach to its personal + commercial law practice to ensure you’re getting what you + your company needs. It has a growing list of [200+] automated 24/7 personal + business legal documents with Embedded Lawyer-Logic™ …
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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.
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.
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.
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.
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.
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 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.
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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.
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.
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.
➲ 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.
➲ 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’".
➲ 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.
➲ When an Affidavit is used to support an application to the Court.
➲ Related by marriage.
➲ To attach, add or append.
➲ Latin term referring to when people die together at the same time, and it is uncertain as to who died first.
➲ 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.
➲ 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).
➲ An agreement (usually made in the form of a Deed) which sets out how property in the family is to be distributed.
➲ The passing of rights, property from one person to another on the occurrence of an event, for example death.
➲ 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.
➲ 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.
➲ 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.
➲ See Probate.
➲ Documents which are used to commence legal proceedings in a court.
➲ 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.
➲ 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.
➲ The Probate Court is a specialist division of the Supreme Court, in each state and territory.
➲ A term more commonly used to refer collectively to Grants of Probate or Administration.
➲ 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.
➲ 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.
