Who can apply for Letters of Administration to execute an intestate will?

Published 11 Sep 2018

If no will is found after an individual's death, they are presumed deceased intestate. This usually means the NSW Trustee & Guardian will take control and divide the estate according to terms established in NSW legislation. However, individuals are able to apply for Letters of Administration to execute an intestate will instead.

Who can take on this role and why would you choose to become the executor of an intestate will?

Intestacy and NSW Trustee & Guardian

It's not just when no will can be found that an individual is considered deceased intestate. Every will has to meet certain state eligibility requirements in order to be considered legally valid. For example, if the document isn't signed and witnessed property, or doesn't make basic provisions for spouses and other close families, it can be dismissed.

At this point, the NSW Trustee & Guardian takes over as executor of the estate and makes provisions for family, friends and others based on a formula established in the Succession Act 2006. If the deceased is found to have no existing family or next-of-kin, it's only at that point that all property and other assets of the estate are passed over to the State.

However, certain individuals are able to become legal executors of the estate through a Letters of Administration application.

Who can apply for Letters of Administration?

In most cases, only persons who are considered to have an entitlement to the estate are able to apply. These people are determined in an order of importance by the NSW Succession Act 2006 as:

  • Spouse(s) such as former married partners or those in de facto relationships.
  • Children or lineal offspring.
  • Parents.
  • Siblings, including half brothers and sisters but not step-relatives.
  • Grandparents
  • Aunts and uncles.

Applications made by someone not entitled to a share of the estate 'on behalf' of another relative will not be granted. However, other circumstances in which an individual may be successful include:

  • Where a NSW attorney makes the application on behalf of an entitled relative that lives outside the state.
  • A legal guardian of an entitled family member who is under the age of 18 or has a reduced mental or physical capacity to seek provision personally.
  • A creditor of the estate may be able to apply too. However, this only occurs if none of the next of kin who are entitled under intestacy apply themselves.

Why become the executor of an intestate will?

The NSW Trustee & Guardian are bound to follow the provision formula established in NSW legislation, regardless of the individual nature of the estate being handled. Applying for Letters of Administration to execute the estate personally means the deceased's wishes can be carried out correctly, ensuring their loved ones are provided for.

For help with will disputes or estate claims, contact the Malouf Solicitors team today.

Please call us on 02 8833 2000 to speak with a lawyer

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