It is the duty of an executor to take care of the deceased's assets and property, arrange payment of the funeral and administration expenses as well as the deceased’s debts and taxes from those assets and to distribute the assets to the beneficiaries.

Depending on the nature of the assets and the size of the estate, it may be that there is no need to obtain a Grant of Probate or Letters of Administration as many smaller assets such as a bank account can usually be dealt with by production to the bank of the will (if there is one) and a death certificate (or certified copies).

Where there is no will, the death certificate or a certified copy is generally provided together with evidence of the identity of the next of kin. The account will generally be closed and payment may be made to the next of kin who will then be liable for payment and distribution of the estate as required by law.

In respect of larger estates or estates that have assets in the form of real property or land, a Grant of Probate or Letters of Administration will be required. Application is made to the Supreme Court of New South Wales and is determined by the Probate Registrar (unless the application is contested in which case it may go before a Judge).

Where the deceased passes away leaving a valid will, an application is made for Probate. The deceased person’s estate is then to be collected and distributed as set out in the will.

If a person dies without having a valid will, they die “intestate”. In that situation, the appropriate application is for Letters of Administration. Once Letters of Administrationare granted and the assets have been collected and all estate debts have been paid, the estate will be distributed according to a statutory order of inheritance contained in the Succession Act 2006 (NSW).

Regardless if a person dies with a will or intestate, there are is a possibility that a beneficiary (or a person who believes that they ought to have been a beneficiary) may make a claim on the estate for a provision or a provision greater than that which they are to receive under the Will or the laws of intestacy. Previously those claims were made under the Family Provision Act 1982 (NSW) but for all deaths after 1 March 2009 are now made under the Succession Act 2006.

Persons who make claims must first prove eligibility and then inadequacy of any provision before any order is made in their favour. We have extensive experience in acting for both claimants and executors / administrators of estates in relation to such claims.

We have a large team of experienced lawyers that can:

• Advise you in detail about the rights and responsibilities of an executor;
• Prepare the documents required to apply for Probate of a Will or Letters of Administration where there is no Will, including the necessary Summons, inventory of property, publications and affidavits;
• Assist you to identify and collect the deceased's assets, including dealing with banks, mortgagees, and retirement villages;
• Advise on the possibility of a tax liability and assist in having tax returns prepared and lodged;
• Advise you about the legal order in which debts must be paid and the remaining assets distributed;
• Explain the process of distribution of the estate;
• Assist you with any claims that may be made against you over administration of the estate
• Defend any claims against the estate such as claims for family provision orders under the Succession Act 2006;
• Prepare a case for a provision under the Succession Act 2006.

Contact us

For free initial telephone advice in relation to the administration of a deceased’s estate, applying for a Grant of Probate or Letters of Administration or in relation to your own estate planning needs, please call one of our Estate, Estate Planning and Estate Litigation Lawyers on (02) 9525 8688.