In certain circumstances, bank accounts cannot be closed until a grant of probate has been made. There are very strict rules and regulations in place which banks have to comply with in order for assets to be dealt with and distributed to beneficiaries and often a grant of probate is required
Making an application for probate and administrating a deceased estate does involve a lot of time and can be draining and complicated as well as costly if the applicant makes mistakes. We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.
Our probate lawyers are here to assist an executor through the whole process from the start of the case which involves doing all things necessary to make an application for a grant of Probate to distributing the estate to the beneficiaries in accordance with the will after all debt and the liabilities of the estate have been paid to creditors if the case may be.
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Letters of Administration
The best way to describe Letters of Administration is authority to deal with a deceased person’s estate in circumstances where there is NO will or in circumstances where the will was invalid.
If this is the case you do NOT apply to the Supreme Court of NSW for Probate. You will be making an Application to the Supreme Court of NSW for Letters of Administration.
This is a long tedious process however a probate lawyer can handle the process from start to finish. We recommend that you contact a lawyer.
If the deceased person passed away without a will, the application will need to be made after the proposed applicant has made every endeavour to try and locate a will and the Supreme Court of NSW must be satisfied that the applicant has made every reasonable endeavour to try and locate a will.
In order to prove that a will does not exist the executor has to carry out various searches for a will. The searches include writing to various entities and institutions and firms that the deceased person may have had dealing with during his or her lifetime. For example, the deceased person’s solicitor, the bank the deceased person held accounts with or a safety deposit box, the deceased person’s financial planner or accountant, just to made a few. A search will also need to be made with the NSW Trustee & Guardian. The NSW Trustee & Guardian is a government body that may create a will for a person although they usually nominate themselves as executor in the will and they may charge a few for their role.
Executors retain the deceased person’s estate on trust until they have the authority to deal with and distribute the estate to the beneficiaries in accordance with the terms of the will.
If a loved one has passed away without a Will or has passed away without a valid will, the following persons may apply to the Supreme Court of NSW for a grant of Letters of Administration:
- Spouse of the deceased or next of kin/spouse and next of kin
- A creditor
- A person who is appointed pursuant to a court order
It is very important to arrange to have your affairs in order and to ensure you have a will and it is best to arrange for a probate lawyer to prepare a will for you to ensure it is valid in order to avoid to unnecessary lengthy process involved in making an application for Letters of Administration, as you ay gather it is a long tedious process and not one you want to endure during the time of losing a loved one.
We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.
Who inherits when there is no Will
If a person has passed away without a will or without a valid will, the manner in which the estate will be distributed depends on a number of circumstances.
In general terms, see below;
If the decease person passed away and is survived by a spouse or a de facto partner and the deceased person did NOT have any children, the spouse is entitled to the whole estate.
Survived by a spouse and children (that is children of the marriage or de facto relationship), the spouse is entitled to the whole estate.
In circumstances where the deceased is survived by a spouse and children but not children of the marriage or de facto relationship but children of a previous relationship, the following applies:
The spouse is entitled to the deceased’s personal belongings and effects and a specific amount which is subject to a formula and varies according to CPI, as well as one half of the rest of the estate which is to be divided between the children of the previous relationship and the spouse or de facto spouse. You should contact a probate lawyer in relation to this matter to seek legal advice. This can be tragic if the relationship between the deceased and his or her children from a previous relationship is estranged, this may leave a messy situation for the deceased person’s spouse / de facto partner having to challenge the matter.
It is circumstances like these which is an example of how an estate may be distributed not in the way the deceased person may have desired, hence all the more reason why a will should be put in place and we recommend you consult a lawyer to arrange to put your affairs in order.
If the deceased person passed away and is survived by children ONLY and NOT a spouse or De facto partner, then in these circumstances the children are entitled to the whole estate in equal shares.
If the deceased person passed away WITHOUT a spouse and WITHOUT children, the whole estate is left to the parents and if they have predeceased then the whole estate is left to the deceased’s siblings and if they have passed away then to the grandparents, then aunts and uncles in equal shares, then cousins then to the state government.
We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.
