No will, or no executor. The estate still needs to be managed.
We act for relatives applying for letters of administration in the Supreme Court of NSW.
Letters of administration are a grant from the Supreme Court of NSW.
They allow an administrator to collect the assets, pay the debts and distribute the estate.
They are needed where there is no will, or where there is a will but no executor able to apply.
Where there is no will, the law decides who inherits.
When letters of administration are needed
- No will. The person died intestate. The administrator distributes the estate under the intestacy rules in Chapter 4 of the Succession Act 2006.
- A will but no executor. The will names no executor, or the executor has died or is unable or unwilling to act. The grant is called letters of administration with the will annexed. The estate passes under the will.
A grant is not needed in every case. The Court will not make a grant if the deceased held no assets in NSW.
Who can apply
The Supreme Court generally grants administration to the person or people with the greatest entitlement to the estate. The usual order is:
- The spouse or de facto partner.
- The children, including children of a child who has died.
- The parents.
- The brothers and sisters, including children of a brother or sister who has died.
- The grandparents.
- The aunts and uncles, including children of an aunt or uncle who has died.
Each group must be exhausted before moving to the next.
If some eligible people apply and others do not, the court needs the consent of those not applying. If consents cannot be obtained, the court may require an administration bond and two sureties.
NSW Trustee and Guardian can also administer an estate.
Who inherits when there is no will
For deaths on or after 1 March 2010:
- A spouse and no children. The spouse takes the whole estate.
- A spouse and children who are all children of that spouse. The spouse takes the whole estate.
- A spouse and children from another relationship. The spouse takes the personal effects, a statutory legacy set by law and indexed, and half of the rest. The children share the other half equally.
- No spouse, with children. The children share equally. The children of a child who has died take that child's share.
- No spouse or children. The estate passes to parents, then brothers and sisters, then grandparents, then aunts, uncles and first cousins, in that order.
- No eligible relatives. The estate passes to the State of NSW.
A de facto partner can count as a spouse. The Supreme Court states the relationship must have been registered, have lasted two continuous years, or have produced a child.
Where administrators get caught
Relatives are missed
The administrator must confirm who is entitled. A child from an earlier relationship changes the spouse's share.
Consents are not obtained.
Without consents from others with an equal right, the court may require a bond and sureties.
The application is filed late.
Applications should be filed within six months of the death. A later filing needs an explanation.
Distribution happens too early.
An administrator who distributes before debts, tax and claims are dealt with can be personally liable.
A family provision claim is not expected.
The intestacy rules do not stop an eligible person from applying for a family provision order.
Common questions
Can a de facto partner apply for letters of administration?
Yes, if they qualify as a spouse. The court will need evidence of the relationship.
What is letters of administration with the will annexed?
A grant made where there is a valid will but no executor able to apply. The estate is distributed under the will.
How long does it take?
The Supreme Court publishes current processing times. Letters of administration have recently taken longer than probate.
Is there a court fee?
Yes. A court filing fee applies.
Related articles
Speak to a solicitor
Call (02) 8062 6300 or book a time that suits you.
Wills and estate planning
Book a free 15 minute estate planning call
Answer three short questions, then choose a time. A solicitor will call you to talk through your will, powers of attorney and guardianship.