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Letters of Administration
If your loved one has died without a will, you may need to apply for Letters of Administration, this will then allow you to become the Administrator of the estate. A grant of Letters of Administration allows the Administrator to step into the shoes of the deceased and administer their estate. If your loved one passed away with a will but the original cannot be located you can apply for Letters of Administration – Will Annexed.
In summary, the process of applying for a grant of administration is:
- Ascertaining the value of assets;
- Organising publication of intention to apply for Letters of Administration;
- Making enquiries to locate and undertake an search for any possible will made by the deceased;
- Drawing necessary documentation to apply for Letters of Administration;
- Obtaining the grant of Letters of Administration;
- Calling in of assets;
- Negotiating with superannuation funds;
- Negotiating with life insurance agencies;
- Organising publication of intention to distribute;
- Distributing the estate; and
- Establishing a trust if required.
To apply for letters of administration we will file the following documents in the Supreme Court of NSW:
- Summons for Letters of Administration (or Letters of Administration with the Will Annexed)
- Draft Grant for Letters of Administration (or Grant for Letters of Administration with the Will Annexed
- Affidavit of the Applicant for Administration (or Affidavit of the Applicant for Administration with the Will Annexed)
- Inventory of Property
- A copy of the will, if you are applying for Letters of Administration with the Will Annexed
- Death Certificate.
A grant of administration is only be made for someone who is entitled to the whole of the estate or to a share of the estate ( with the consent of the other beneficiaries)
The grant is usually made to the deceased’s ‘next of kin’, which is the deceased’s closest relative which includes:
- the spouse of the deceased
- one or more of the next of kin
- the spouse jointly with other relatives.
If there is no next of kin or none that are appropriate or willing to apply for the grant, then the Court may grant administration to the NSW Trustee & Guardian.
The law sets out why is entitled to an estate and in what Order, it is as follows ( this table is taken from Law Access) :
|1. A spouse and child from the relationship||The spouse is entitled to the whole of the estate.|
|2. A spouse and child from a previous relationship.||The spouse is entitled to receive:
· the personal effects (property) of the deceased· a statutory legacy (gift) of $350 000 adjusted by the Consumer Price Index. For information about Consumer Price Index, go to the Australian Bureau of Statistics website. If this amount is not paid within 1 year from the date of death, the spouse is also entitled to receive interest on this amount.· half of everything left over (the remainder of the estate).All of the deceased person’s children, including children from previous relationships and from the current spouse, whether they are from a previous relationship or from the spouse, are entitled to equal shares of the other half of the remainder of the estate. Children who are not legally the children of the deceased, for example step children, are not included.The spouse also has a ‘right to elect’ to acquire property from the estate. If you are the spouse and if you want to purchase property from the estate, you should get legal advice
|3. More than one spouse||The spouses are entitled to equal shares of the estate. There may be more than one spouse if the deceased was married and had a de facto spouse or more than one de facto spouse.|
|4. Children only||The children are entitled to equal shares of the whole of the estate. This includes adopted children, but not step children. If a child of the deceased has already died leaving children (grandchildren of the deceased), the grandchildren are entitled to their parent’s share.|
|5. No spouse or children||The deceased person’s parents are entitled to equal shares of the whole of the estate.|
|6. No spouse, children or parents||The deceased person’s full and half blood brothers and sisters are entitled to equal shares of the whole of the estate. If the deceased person’s siblings died leaving children, then the deceased person’s nephews or nieces are entitled to the share their parent would have received in the estate.|
|7. No spouse, children, parents, brothers or sisters||The deceased person’s grandparents are entitled to equal shares of the whole of the estate.|
|8. No spouse, children, parents, brothers, sisters or grandparents||The deceased person’s full and half-blood aunts and uncles are entitled to equal shares of the whole of the estate.|
|9. No spouse, children, parents, brothers, sisters, grandparents, aunts or uncles||The deceased person’s first cousins are entitled to share equally in the share that their parent would have been entitled to.|
|10.No spouse, children, parents, brothers, sisters, grandparents, aunts, uncles or cousins||The State government is entitled to the whole of the estate|
See the original table here
Obtaining a grant of Letters of Administration is set by law and all lawyers charge the same rates, this is why when you are picking a lawyer to work with you through this process you choose someone you are comfortable with and feel supported by.
These are set by a scale which is laid out in the Legal Profession Uniform Law Application Regulation 2015 – schedule 3
These costs are as follows:
Part 1 – Obtaining first time grant or the resealing of probate
Disclosed value of assetsCosts payable
|Disclosed value of assets||Costs payable|
|Not exceeding $30,000||$560
Plus $13.33 for each $1,000 up to $30,000
|Exceeding $30,000 but not exceeding $150,000||$960
Plus $5.90 for each $1,000 in excess of $30,000
|Exceeding $150,000 but not exceeding $1,000,000||$1,670
Plus $4.47 for each $1,000 in excess of $150,000
|Exceeding $1,000,000 but not exceeding $3,000,000||$5,470
Plus $1.66 for each $1,000 in excess of $1,000,000
|Exceeding $3,000,000 but not exceeding $5,000,000||$8,800
Plus $1.10 for each $1,000 in excess of $3,000,000
|Exceeding $5,000,000 but not exceeding $10,000,000||$11,000
Plus $0.90 for each $1,000 in excess of $5,000,000
So, for example if an Estate has a value of $500,000 the scale costs would be calculated as follows:
$1670 + (500,000 – 150,000 = $350,000 /1,000 =350 x 4.47) = $3,234.50 + GST
This fee is the cost of obtaining the grant of Letters of Administration, the calling in of assets is charged on a pro-rata basis for what action is required for each individual Estate.
At the initial consultation, we will take instructions from you to commence the process of applying for Letters of Administration.
Prior to attending your conference with us, we will send you an information form for your completion and to assist you to gather the relevant information required.
Give the experienced lawyers at ALA Law a call to discuss we can assist you with applying for a grant of Letters of Administration, or hop over to our “Get Started Now page” to lodge an instant enquiry to start your matter.