Deceased estates fall under the jurisdiction of Supreme Court of NSW (SCNSW). The SCNSW only has jurisdiction if the deceased left assets in NSW. Grant of Probate or Grant of Letters of Administration will not be made if the deceased had no assets in NSW.
Grant of Probate or Letter of Administration
Please also refer to Fig 1 Grant of Probate Or Letter of Administration.
An application for a Grant of Probate is made when there is a valid Will. A copy of the Supreme Court of NSW Probate Checklist is annexed, marked Annexure “A”
The following is a useful link which provides a lay persons explanation and list of what to do when applying for a grant of probate.
If there is not a valid Will then an application for Letters of Administration can be made. A copy of the Supreme Court of NSW Administration Checklist is annexed, marked Annexure “B”
The following is a useful link which provides a lay person explanation and list of what to do when applying for letters of administration.
Similarities between the two lodgements is the requirement for Advertising prior to lodgement of application to the SCNSW.
Differences include the type forms that are required to be lodged, please see Annexure A and B.
Under an application of letters of administration it is mandatory as a minimum, to furnish evidence of searches for a will in the personal effects of the deceased and enquires for a will with the NSW Trustee & Guardian and the solicitors and banks of the deceased.
Other relevant considerations
If the Death Certificate does not provide a cause of death or is pending a decision from the coroner, you need to include a paragraph in the affidavit of the applicant which describes briefly the circumstances of the deceased death and whether any charges have been brought in respect of the death. Note under ss 40A and 40B of the Probate and Administration Act, a beneficiary who has been committed of murdering the deceased forfeits their right to the estate.
Joint Tenants or Tenants in Common
Joint tenancy has rights of survivorship, tenants in common do not. That is property held in tenant in common form part of Assets of the Estate. Joint Tenants is listed as an asset of the estate but are devolved automatically to the saviour. Joint Tenant properties lodge Notice of Death with Department of land.