ESTATE ADMINISTRATION

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Probate is the legal process of proving a deceased person's will with the court. It confirms the validity of the will and gives the executor the legal authority to administer the estate, including distributing assets, paying debts, and settling any legal matters. Once probate is granted, the executor can manage the estate according to the instructions in the will.

Probate is generally required when the deceased person’s estate includes assets such as real estate, bank accounts, or investments in their name alone. If the estate only includes joint assets (e.g., joint bank accounts or property) that pass directly to the surviving owner, probate may not be needed. However, it’s always best to seek legal advice to determine if probate is necessary.

The process of obtaining probate in NSW typically takes between 3 to 4 months from the time the application is filed. This may vary depending on the complexity of the estate, whether there are any challenges to the will, or if additional information is required. Delays can also occur if the court requires further documentation or clarification. 

After probate is granted, the executor has several important duties, including:

• Gathering estate assets
• Paying any outstanding debts and taxes.
• Distributing assets to the beneficiaries according to the will.
• Keeping accurate records and managing the estate in a transparent and responsible manner. 

The executor must act in the best interests of the beneficiaries and comply with all legal requirements. 

If the deceased person does not have a will, they are said to have died "intestate." In this case, the court will not grant probate, but instead, the court may issue Letters of Administration. A close relative (usually a spouse, child, or parent) can apply to the court to become the administrator of the estate, who will then distribute the estate according to the rules of intestacy under NSW law.

Letters of Administration are granted by the court when a person dies without a valid will. This legal document gives the person appointed as the administrator the authority to manage the deceased’s estate, similar to how probate functions for an executor named in a will. The administrator’s duties include gathering the estate’s assets, paying debts, and distributing the estate according to the intestacy rules in NSW. 

To apply for Letters of Administration in NSW, you must file an application with the Supreme Court of NSW. You will need to provide the court with a death certificate, an affidavit confirming the deceased person’s family members and potential beneficiaries, and any necessary documents to establish that you have a legal right to apply. If the estate is complex, seeking legal advice is recommended.

In NSW, the person who is most likely to be appointed as the administrator is a close family member of the deceased, such as a spouse, child, or parent. If there are multiple potential applicants, these people can apply together. If no one applies, the court may appoint a public trustee or another professional to manage the estate. 

The key difference is that Probate applies when there is a valid will, and it grants the executor the authority to manage the estate according to the terms of the will. Letters of Administration, on the other hand, is issued when there is no valid will, and they grant the administrator the authority to manage and distribute the estate according to NSW’s intestacy laws. 

Both processes give the appointed person the legal authority to administer the estate but apply under different circumstances.