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Letters of Administration

What are Letters of Administration?

Letters of Administration refers to an application made to the Supreme Court of NSW, where the Will of the deceased cannot be located or where there is a Will, but no Executor named in the Will or the Executor named has died or is unable to act as Executor.

A Grant of Letters of Administration means that the Administrator appointed by the Court can deal with the Estate in the same way an Executor would deal with the Estate, such as paying debts of the Estate and administering the Estate in accordance with the Will, or in accordance with the Laws of Intestacy if there is no Will.

The difference between Probate and Letters of Administration is whether the deceased left a valid Will with an Executor, who is able to act, or whether the deceased left a valid Will with no Executor, able to act or left no Will at all.

Applying for Letters of Administration can be more time consuming and costly than applying for a Grant of Probate, as it involves more information being provided to the Court. This is why, it is so important to seek expert legal advice on your Will which can include ensuring that you name more than one Executor, so that your Estate will not be subject to a Grant of Letters of Administration.

Taking the time to engage a specialist lawyer in the practice of wills and estates will help you reduce the risk of incurring additional costs to your family once you die if the correct provisions are not considered properly.

Your first consultation with one of our experienced wills and estate lawyers is free of charge. Get In Touch and provide peace of mind to yourself and your family.

It is extremely important to choose your Executors carefully because they are the people that will be carrying out the wishes contained in your Will.

Executors administer your Estate including distributing your assets to your beneficiaries. In order to administer your Estate your Executors will be given the power to deal with your assets and this may include the power to sell real estate and make investments.

Although your Executors have a duty to act honestly in the interests of your beneficiaries there are a number of court cases where Executors have breached this duty to further their own financial interests.

To ensure that your Estate is not caught up in expensive litigation if your Executors breach their duty to your beneficiaries you need to make sure that the Executors you choose are trustworthy and will act in your beneficiaries best interests.

When considering whom to appoint as your Executors you should also consider their age, as you want to avoid appointing Executors who may not be alive to administer your Estate. It is also wise to appoint more than one Executor to ensure that, in the event one of the Executors is unable or unwilling to act as your Executor, the surviving Executor can administer your Estate. Administering an Estate can be time consuming so before you decide on your Executors have a talk with them to make sure that they are willing to act for you in this capacity.

Your Executors will also be the people who will be in charge in the event that there is a family provision challenge to your Will. In a day of sometimes complex family arrangements appointing Executors who are aware of your family circumstances and the reasons behind the distribution of your assets can be helpful.

There are numerous additional reasons why choosing your Executors carefully is essential. However, the one thing to keep at the front of your mind is the fact that you are handing your Executors all your assets for distribution to your beneficiaries. So you need to choose carefully.

Our expert Wills and Estates Lawyers are aware of the problems that can arise when a person does not choose their Executors carefully. This knowledge makes them an invaluable resource in advising people on choosing Executors to ensure that the distribution of your assets after your death is as smooth as possible for your beneficiaries. We can advise you in depth about the rights and responsibilities of your Executors and the type of powers that they can be given to distribute your Estate.

Identifying Beneficiaries in a Will - "The Benjamin Order"

In 1902 an executor was unable to find or identify a beneficiary of an estate. This case gave rise to the term “Benjamin Order”. In this case, the Court decreed that when an Executor is faced with uncertainty on who should be a beneficiary of an Estate, that Executor has the right to seek a declaration from the Court on who should benefit. Once this declaration is made the Executor is no longer liable if they distribute the Estate to who they believe are the correct beneficiaries, even if more entitled beneficiaries are subsequently discovered.

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Revoking a Grant of Probate - Testamentary Capacity

In the Supreme Court of New South Wales case concerning In Estate Sue [2016], an application to revoke a Grant in Common Form was submitted. The grounds for the application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.

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