The term Administration is defined as the management of a deceased estate by a person duly authorised to act as Executor as appointed by the deceased in the deceased’s will or by an Administrator appointed by the Court in the event that the deceased did not make a will.
Probate is a certificate granted by the Supreme Court which certifies that the will of the deceased has been proved as valid and that authority has been provided to the executor of the deceased’s will to administer the deceased estate.
In order to obtain Probate, the executor will need to apply for Probate in the Probate Division of the Supreme Court.
An application for Probate must be accompanied by the original will and an affidavit of the executor.
In the event that there is not a will or a valid will or where there is a will but no executor, the task of administration of the deceased’s estate can only be carried out by a person(s) obtaining a grant of Letters of Administration.
Letters of Administration is an application made by a person such as a partner of the deceased in such circumstances in order for that person (the Administrator) to administer the estate in the same way an executor does.
The executor and administrator functions vary depending on the type of assets in the deceased’s estate. Generally, the role includes:
(a) Protecting, collecting and gathering the real and personal assets of the deceased’s estate;
(b) Paying all estate debts and discharging liabilities;
(c) Notifying all interested parties including beneficiaries of the will;
(d) Providing to the Supreme Court an inventory of the assets comprising of the estate;
(e) Preparing and submitting the total costs involved in administration of the estate to the Supreme Court;
(f) Applying for the required Grant of Probate or, if applicable, Letters of Administration from the Supreme Court;
(g) Finalising income tax returns of the deceased estate; and
(h) Taking the necessary steps to distribute the estate pursuant to the deceased’s will.
The beneficiaries have no power to make decisions about how the estate is administered but are entitled to full details of what comprises of the estate and how it is to be distributed.
In the event that a family provision claim is made on the deceased’s estate, the executor is required to meet the claim and comply with the required procedures in dealing with such a claim including mediation to settle the claim.
The beneficiaries only have a right to take proceedings against the executor if they fail to administer the estate diligently and in accordance with the will of the deceased.
While distributing the deceased estate, both the legislative and common law authorities and the deceased’s intention are considered.
In situations, where a person dies without a will (intestate) or the will is void, the property is then distributed in accordance with Chapter 4 of the Succession Act 2006 (NSW).
In those circumstances, the deceased’s property is distributed to family members in the following order:
(m) Nieces and nephews;
(n) Children of the nieces and nephews;
(p) Aunts and uncles; and
Things become difficult if the deceased has had a few spouses, or a spouse and a defacto relationship but is not divorced.
In extreme situations where the deceased has no family member, the Government distributes the deceased estate in whole to the Crown.
Matters relating to deceased estates can be complex and often involves a substantial amount of paperwork. At Taylor & Scott Lawyers, we have an experienced team of professionals who can help you through the legal proceedings and guide you in every step of the process.