We understand how difficult it can be when a loved one passes away, so we offer a compassionate and reliable Estate Administration service to relieve some of the added pressure that comes with dealing with a loved one’s legal affairs.
When someone passes away with a Will in New South Wales, the person or persons who are appointed as their Executor are responsible for administering the estate. This involves arranging the funeral, paying any debts of the person, collecting or selling the estate assets and distributing the estate to the beneficiaries that are nominated in the Will.
Part of an Executor’s job is to consider whether a Grant of Probate is needed from the Supreme Court of New South Wales. A Grant of Probate is where the Supreme Court of New South Wales formally authorises the Executor to deal with the estate assets. There is no statutory requirement for an Executor to obtain a Grant of Probate in every case, and whether it becomes a requirement will depend on the type, size and value of the estate assets which are in New South Wales.
When someone passes away without a valid Will in New South Wales, then they are said to have died “intestate”, and the administration of an intestate estate is a much more complicated process. Because there is no Will, there is also no Executor or beneficiaries. The law in New South Wales applies a hierarchy to determine which of the person’s next-of-kin are entitled to the majority of the estate, and therefore the most entitled to become responsible for the administration of the estate.
Like an Executor must apply for a Grant of Probate, the next-of-kin in an intestate estate may be required to apply for a Grant of Letters of Administration from the Supreme Court of New South Wales. A Grant of Letters of Administration is where the Supreme Court of New South Wales receive evidence of the person’s family members and formally authorises the next-of-kin relative or relatives to deal with the estate assets. Again, whether a Grant of Letters of Administration becomes a requirement will depend on the type, size and value of the estate assets which are in New South Wales, but it is much more commonly required for intestate estates.
The Wills & Estates Team at Coutts works with you to consider whether a Grant of Probate or Letters of Administration is required and to efficiently finalise the administration of an estate by paying all debts and collecting or selling all the assets of a deceased person. The Team will take care of the legal process involved with obtaining a Grant of Probate or Letters of Administration from the Supreme Court of New South Wales to provide you time to be with your family.
Frequently Asked Questions
The bank account of a deceased family member will be automatically frozen from the time that the bank are notified of their death.
If the bank account of a deceased family member was held in their sole name, then the process to close the account will depend on how much money remains in the account and the terms and conditions of the particular bank or credit union.
Some banks and credit unions will be satisfied to release the money held in the bank account to the Executor of the estate upon being provided with a copy of the will, death certificate and suitable identification from the Executor. However, this is normally only the case where the amount of money held in the account is less than $50,000.00 or some other threshold set by the bank or credit union.
Where the amount of money remaining in the bank account is over the bank’s threshold, the bank will require the Executor or next-of-kin to provide a copy of the Grant of Probate or Letters of Administration from the Supreme Court of New South Wales before the funds are released and the account is closed.
If the deceased person held the bank account jointly with another person who is still living, then the bank account will not automatically freeze and will transfer into the sole name of the surviving account holder. Normally the bank will require the surviving account holder to provide a copy of the death certificate to change the name on the account.
In New South Wales, the process for selling or transferring the property of a person who has passed away depends on the way that property was owned.
In New South Wales, there are three ways that people can own property:
- Sole Ownership – When the title of the property is held in the deceased person’s name only. No one has the automatic right to the property and the asset will be handled as part of the deceased person’s estate and be distributed in accordance with what that person had nominated in their Will, or if they did not leave a Will, by the laws of intestacy.
- Joint Tenants – This is the most common way that married or de facto couples own property. Whilst each person holds an individual interest in the property, when one person on the title passes away the legal concept of “survivorship” takes place. This means that the interest of the deceased person will automatically pass to the other person listed as the joint tenant on the title deed as that other person has “survived” the deceased person. In this case, the property does not form part of the deceased person’s estate.
- Tenants in Common – This is when two or more people are co-owners of the same property. All the people who own the property will be listed on the title deed. The co-owners can all hold an equal share in the property (known as Tenants in Common in Equal Shares) or they can each own an unequal share, for example, 30/70 or 40/60. The co-ownership will depend on the arrangements made when the property was purchased. When a person on the title of a property owned as Tenants in Common passes away, their individual interest or share in the property does not automatically pass to the other surviving owners. Instead, the deceased person’s share in the property will form part of their estate and be distributed in accordance with what that person had nominated in their Will, or if they did not leave a Will, by the laws of intestacy.
As there are different ways that people can own property, it automatically follows that there are different ways to transfer the property into the new owner’s name. Property is transferred as follows:
Because the concept of survivorship applies to property that is owned this way, it is a much simpler process than the others. Even though the property automatically passes to the survivors, the surviving owner is still required to complete a form and provide certain documents to the land titles office to officially remove the deceased person’s name from the title.
In New South Wales, the surviving owner will need to prepare and register a document called a “Notice of Death” and provide the land titles office with the original Certificate of Title so that they can remove the name of the deceased owner and return a new Certificate of Title to the surviving owner.
Tenants in Common
As the right of survivorship does not apply to property owned by a person in their sole name or as Tenants in Common with other co-owners. Instead, the property forms part of the deceased person’s estate, and how the property is transferred will depend on whether the deceased person had a valid Will.
Where there is a Will, the executor will need to apply for a Grant of Probate from the Supreme Court of New South Wales before they are legally permitted to transfer or sell the property. It is only once Probate has been granted that the executor will be able to arrange for the property to be transferred into the names of the beneficiaries or sold on the market.
Where there is no Will, the next-of-kin relative or relatives who have the greatest interest in the estate in accordance with the Court’s heirarchy will then be required to make an application to the Supreme Court for a Grant of Letters of Administration and become the “Administrator” for the estate. It is only once the Letters of Administration has been granted that the Administrator has the legal authority to transfer or sell the property, however the beneficiaries of the property or the proceeds of sale of the property will depend on the rules of intestacy under the Succession Act (NSW) 2006
The legal requirements and time frames for transferring property after someone has passed away can differ greatly. Our Wills & Estates Team are able to help you to understand the process and handle the transfer of the property with as few issues as possible.