When a person dies without a valid will, there might not be an executor who has the authority to deal with the estate. This can leave family members unsure about who can access accounts and make decisions about estate assets. In NSW, an eligible person may need to apply to the Supreme Court for letters of administration. An NSW probate lawyer can help families work out who has the right to apply and what documents they’re likely to need.
What are letters of administration?
Letters of administration are a grant by the Court giving legal authority to an administrator to deal with an estate. The administrator is like an executor, but appointed by the Court instead of being named in a will.
This type of grant is generally required where the deceased has not left a valid will and estate assets need a formal grant. It may also be relevant when there is a will, but no executor is willing or able to act. In that situation, the application may be for letters of administration with the will annexed.
Once the grant is made, the administrator can usually collect estate assets, pay debts, and distribute what remains to the people who are legally entitled to receive it.
Who usually has the right to apply?
The person who applies will normally be someone entitled to a share in the estate. This is usually the dead person’s nearest relative. If the deceased had a spouse, the spouse would be the most likely candidate to apply. This may include a married spouse, a de facto partner or a registered partner in NSW, depending on the circumstances. If there is no spouse, or if other family members are also entitled, another next of kin may be able to apply.
The Court looks at who has a proper interest in the estate. A person does not usually get to apply just because they are willing to help. They generally need to have a legal connection to the estate.
Can more than one person apply?
Yes, more than one eligible person may be able to apply. This may occur where family members share a common interest in the estate and agree to act.
A joint application can sometimes help to avoid conflict but can make administration more difficult if the applicants don’t work well together. Administrators must be able to make practical decisions, respond to institutions, and deal with estate duties properly.
If there is disagreement about who should apply, it may delay the estate. The Court may require further information before deciding who should be appointed.
What if the closest person does not want to apply?
The person who has first choice may not want to do the job, live abroad, have health concerns, or feel unable to cope with the responsibility.
In some cases, someone else who is eligible may be able to apply instead. The Court may require evidence that the person with the better right is not applying. That person may also need to consent or formally step aside.
This is one reason families should not assume that an application will be simple. The paperwork may need to explain the family structure and show why the applicant is the right person.
Can a creditor apply?
A creditor may be able to apply in rare cases, but this is not the usual path. The Court will normally look first to the people who are entitled under intestacy.
If no appropriate family member is willing or able to apply, a creditor may need legal advice about whether an application is possible. The NSW Trustee and Guardian may also be relevant in some estates.
For most families, the main question is not whether any interested person can apply. The real question is which family member has the strongest right to apply under NSW law.
What does the applicant have to show?
Usually, the applicant needs to provide details of the deceased, family structure, and estate assets. The Court may also request evidence of death, particulars of beneficiaries, and details of debts.
If children under 18 or persons unable to consent for themselves are involved, additional procedures may be needed. The Court may require protection of their part of the estate.
An NSW probate lawyer can help with the preparation of the application and reduce the chance of delays caused by missing information.
How can JS Law Group help?
Letters of administration can be confusing when there is no will or when family members disagree about who should act. JS Law Group assists families with probate and estate administration issues in NSW. If you need help working out who can apply for letters of administration, call JS Law Group on 02 9135 2939 or fill in our contact form to speak with an NSW probate lawyer about your next step.
