After the death of a loved one, there comes a time when minds turn to the existence of the last testamentary document made by the deceased. Depending on the nature of the assets, the question of whether the person left a will or not will determine the legal pathway that must be followed to deal with their estate.


Applying for grant of probate

In many cases, the whereabouts of the will made by the deceased will be known. It is in the filing cabinet, the safe, or the family solicitor has it. In those cases, the process of applying for a grant of probate is followed or the estate is administered in accordance with the Will without the need for a grant.

If the deceased left a Will, and depending on the assets, an application for a Grant of Probate must be made by the executor so they may be formally appointed by the Court and the Will can be formally proved as valid.

The assets can then be collected, realised as appropriate and the liabilities identified and debts paid.

Subject to the legislative requirements as to the publication of notices, the estate is in due course, distributed to those lawfully entitled to it under the will subject to any orders made by a court to vary its terms.


Applying for letters of administration

In other cases, the status of whether the person left a Will or not is unknown, or, it is common knowledge that they never made a Will during their lifetime. In those cases, the estate administration path is similar. The default Will in effect, is the set of intestate rules made under NSW law and an application for a Grant of Letters of Administration may be necessary.

If the person who has died permanently lived in NSW at death or has particular assets in NSW, then the New South Wales laws of intestacy will govern how the estate left by the person will be administered. These rules provide for an order of entitlement under the Succession Act 2006 (NSW).

But first the application for a Grant of Letters of Administration needs to be made. The proper person to make this application is generally, the person who has the greatest entitlement in the estate under the intestate rules. To establish this, the intestate entitlements need to be proved. We have many years of experience in intestate estate applications because of our in-house probate genealogy capabilities. So much so, that we often assist other solicitors in establishing entitlements to intestate estates for their matters.

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