Losing someone is hard enough without having to navigate the legal complexities of administering their estate at the same time. Yet that is often exactly what executors and family members find themselves facing, sometimes within days of a loved one passing.
Deceased estate administration involves a range of legal and practical responsibilities that can be more involved than most people expect.
From applying for probate and identifying estate assets, to liaising with banks, managing tax obligations, and distributing to beneficiaries, the process requires careful attention at every step.
Coleman Greig’s estate administration lawyers work with executors, administrators, and families across NSW to take on the legal burden and ensure the estate is administered correctly, efficiently, and in accordance with the law.
What Is Probate and Estate Administration?
When a person passes away, their remaining estate, including any assets such as property, bank accounts, and superannuation, has to be divided amongst their beneficiaries.
If a legal Will is in place, an executor is identified in that Will as the person or persons responsible for ensuring the asset pool is distributed according to the deceased’s wishes.
The administration of estates in NSW is primarily governed by the Succession Act 2006 (NSW) and the Probate and Administration Act 1898 (NSW).
Together, these pieces of legislation set out the legal framework for wills and administration of estates, including the process for obtaining a grant of representation, the duties of executors and administrators, and the rules that apply when someone dies without a Will.
What Is Probate and When Is It Required?
Probate is a formal process by which the Supreme Court of NSW grants authority to the executor named in a Will to administer the deceased estate. It is effectively the Court’s confirmation that the Will is valid and that the named executor has legal authority to act on behalf of the estate.
Not every estate requires a grant of probate. Whether it is needed depends on the nature and value of the assets involved. Probate is generally required where the estate includes real property held solely in the deceased’s name, where financial institutions require it before releasing funds, or where the complexity or value of the estate makes a formal grant necessary.
The process of applying for probate involves filing the original Will, a death certificate, and supporting documentation with the NSW Supreme Court, along with an inventory of the estate’s assets and liabilities.
There are strict requirements under the Probate and Administration Act 1898 (NSW) governing how the application must be prepared and what must be included. Errors or omissions can cause significant delays, which is why most executors engage a solicitor to manage the application on their behalf.
The Role of the Executor
In some cases, a person appoints a solicitor as their Executor. In other cases, family members or trusted loved ones are appointed and they need the help of a solicitor to administer the estate in accordance with the law and the terms of the Will.
Regardless of who is appointed, the executor’s duties during the administration of the deceased estate are substantial. At a high level, these include:
- Locating the original Will and registering the death
- Identifying, valuing, and protecting all estate assets and liabilities
- Applying for probate where required
- Notifying and locating beneficiaries
- Paying the deceased’s outstanding debts, including any tax obligations
- Lodging final tax returns for the deceased and, where applicable, for the estate itself
- Keeping accurate records of all transactions
- Distributing the estate in strict accordance with the terms of the Will
Executors carry personal legal obligations throughout this process. An executor who distributes assets prematurely, fails to meet tax obligations, or otherwise administers the estate incorrectly can be held personally liable to beneficiaries or creditors. Having an experienced solicitor guiding or managing the process significantly reduces this risk.
Dying Without a Will: Letters of Administration
If a person dies without leaving a Will, it is called dying intestate. Chapter 4 of the Succession Act 2006 prescribes a pecking order for those potentially eligible to inherit in that person’s estate. On intestacy, a grant of representation, called letters of administration, may need to be obtained from the Court before the estate of the deceased can be dealt with.
Letters of administration is the formal court order that authorises a person, known as the administrator of estate, to administer the deceased’s estate in the absence of a valid Will.
The administrator of estate takes on the same duties and personal liability as an executor, but instead of following the instructions of a Will, they must distribute the estate in accordance with the statutory formula set out in the Succession Act.
Applying for a letter of administration involves an application to the NSW Supreme Court, similar in nature to a probate application.
The person entitled to apply is determined by the order of priority set out in the legislation, generally the deceased’s spouse or de facto partner first, followed by children, parents, and then siblings. Where there are competing claims or disputes about who should be appointed, the matter may need to be resolved by the Court.
One of the most significant consequences of dying intestate is that the estate is distributed according to a fixed legal formula rather than the deceased’s actual wishes.
This can lead to outcomes that the deceased would not have intended and, in some cases, can give rise to disputes among family members. If you are dealing with an intestate estate and there is conflict among potential beneficiaries, our Contested Estates team can assist.
What Does Estate Administration Involve?
At Coleman Greig, we can take the stress out of administering a Will for you. We are able to assist with all of the legal and practical aspects of estate administration including organising probate, taxation obligations, liaising with banks and superannuation funds, locating beneficiaries and any necessary documentation.
Executor Duties and Personal Liability
The administration of an estate is a process that unfolds over weeks or months and involves considerably more than simply dividing up assets. Before any distribution can be made to beneficiaries, the executor or administrator must ensure that all of the estate’s liabilities have been properly identified and addressed.
This includes paying any outstanding debts owed by the deceased, meeting the costs of administration, and satisfying any tax obligations – both those of the deceased personally and those that arise in the estate during the administration period.
The Australian Taxation Office requires a final income tax return to be lodged for the deceased, and the estate itself may also have tax obligations depending on how assets are managed and distributed.
Executors must keep clear and accurate records of every transaction made during the administration. Beneficiaries are entitled to an account of how the estate has been administered, and an executor who cannot demonstrate that they have acted properly may face legal proceedings.
Taking professional legal advice early, ideally before taking any steps to deal with estate assets, is the most effective way to protect yourself as an executor and to protect the interests of the beneficiaries.
How Our Estate Administration Lawyers Can Help
Coleman Greig’s estate administration lawyers assist executors, administrators, and families throughout NSW with every stage of the probate and estate administration process. Depending on your circumstances, we can help with:
- Advising executors and administrators on their legal duties and obligations from the outset
- Preparing and filing probate applications with the NSW Supreme Court
- Preparing and filing applications for letters of administration where the deceased did not leave a valid Will
- Liaising with banks, financial institutions, and superannuation funds to identify and release estate assets
- Managing tax obligations for the deceased and the estate throughout the administration period
- Locating beneficiaries where their whereabouts are not known
- Overseeing the final distribution of the estate in accordance with the Will or the statutory rules on intestacy
- Acting as executor directly where Coleman Greig has been appointed in that role
For a broader overview of our Wills and Estate Planning services, including help with preparing a Will, Powers of Attorney, and Enduring Guardianship appointments, visit our Wills and Estate Planning page.
Coleman Greig are available to service your needs no matter where you are located in NSW. Our network of offices are supported by the latest digital technology, enabling us to work with you in a way that suits you best.
Speak With an Estate Administration Lawyer Today
Managing the legal administration of a deceased estate while grieving is a significant undertaking. You do not have to do it alone, and the earlier you seek advice, the smoother the process tends to be.
Whether you need a letter of administration lawyer to guide you through an intestate estate, or an experienced solicitor to manage a probate application and handle the full administration, Coleman Greig’s team is ready to assist. We have offices in Parramatta, Norwest, Penrith, and Sydney CBD, and we work with clients remotely across NSW so location is no barrier.
To speak with a member of our team, please contact us directly or visit our locations to find your nearest office. This page is general in nature and is not a substitute for legal advice tailored to your specific circumstances.
