Probate And Administration Act

A deceased’s estate can be distributed and administered, as per the law, and by certain people, such as an executor or administrator. Probate and Administrative law defines the legal process, which ensures the right person is appointed. Find out more about the Probate and Administration Act, its key elements, legislative changes and how laws vary in each state. Let’s take a closer look.

What Is Probate?

When someone dies, the correct procedure must be followed. The gathering of the assets, payment of debts, and distribution of the estate of the deceased must be correctly administered, as per the law. A grant of probate is a legal document issued by the Supreme Court that gives permission for the executor of a deceased estate to administer the assets. If there is no valid will, the court will issue letters of admimistration to an eligible family member or a personal representative who is responsible for managing the property of the deceased.

What Is The Purpose Of The Probate Act?

The Act contains the probate and administration regulations and rules to ensure the correct person is appointed, and that the executors and administrators understand their rights and duties. It also contains laws relating to the administration of the estate of a deceased person, including the passing of property on death, grants of representation and the law of wills. In New South Wales, two primary pieces of legislation govern the passing of property on death. They are the Succession Act 2006 and the Probate and Administration Act 1898.

Changes To The Act In NSW

The NSW Wills Probate and Administration Act was enacted in 1898 and renamed Probate Administration Act 1898 in 2008. A section of that law became the Succession Act 2006. Probate and administration law has undergone significant change in recent years. New South Wales law about family provision, making, altering and revocation of wills, and reformed intestacy rules are now contained in the Succession Act. New processes and provisions added to probate rules include:

Statutory Wills

A statuatory will is the authorisation from the Supreme Court to alter or create a will on behalf of an individual who does not have the capacity and requires assistance.

Informal Wills

When an original testator creates a will that does not comply with legal requirements, for example, it may not be signed or witnessed correctly, the court can assess the document to determine validity.

Rectification

In a will that does not clearly explain the intent, a court can correct the error and make changes to reflect the correct intention.

Family Provision

An eligible family member who believes they have been left out of a will can apply for a family provision order.

What Are The Key Elements Of The Act?

The table of provisions is extensive, and the key elements are as follows:

• Estates of deceased persons
• Wills
• Probate and Administration – court jurisdiction, grant of probate and revocation
• Small estates – duties of registrar or agent
• Letters of Administration
• Foreign probates
• Probate caveats
• Administration of assets – powers and obligations of a personal representative, payment of debts, creditors to stand in equal degree
• Intestacy – distribution of an intestate estate, rights of partners to intestate dwellings, simultaneous deaths
• Administrators and executors – powers and functions,
• Public trustee and guardian

Laws Governing Deceased Estates In Australia

There are no federal laws that govern deceased estates in Australia, legislation differs across jurisdictions, and each state and territory has probate and administration law, which can make managing a deceased estate complex. Deceased estate and will laws vary in each state, for example, if someone wanted to apply for a family provision order in New South Wales, the law is governed under the Succession Act 2006, whereas a claim in Western Australia, would be governed by the Family Provision Act 1972. Families managing a deceased estate should consult a lawyer specialising in the relevant state law.

Summary

Administration and probate law contain comprehensive regulations and rules to ensure that executors and administrators understand their rights and duties when managing the estate of deceased person. In New South Wales, two primary pieces of legislation govern the passing of property on death. They are the Succession Act 2006 and the Probate and Administration Act 1898. Probate and administration law has undergone significant change in recent years. New South Wales legislation about family provision, making, altering and revocation of wills, and reformed intestacy rules are now contained in the Succession Act. New processes and provisions added to probate rules include: statutory and informal wills, rectification and family provision. The clauses within the regulations are extensive, and the key elements are as follows; administration and probate, wills, intestacy, deceased estate management, functions of executors, and caveats. There is no federal law that governs wills, probate and administration law in Australia. Legislation differs across jurisdictions in each state and territory, which can make managing the estate of a deceased person challenging. Families managing the estate of a loved one should consult a lawyer specialising in the relevant state law.

FAQs

What Is Section 72 Of The Probate And Administration Act 1898 NSW?

Section 72 of the regulation focuses on the registrar of probates or administration at the Supreme Court. The legislation details the rules regarding granting probate or letters of administration and explains, the court has jurisdiction and in certain cases, the registrar is not bound to grant probate. This section also states that if an executor of the estate or family member of the deceased lives overseas, they are entitled to appoint an attorney in the relevant state to proceed on their behalf.

What is The Probate And Administration Act In New South Wales?

A grant of probate is a legal document issued by the Supreme Court that gives permission for the executor of a deceased estate to administer the assets. If there is no valid will, the court will issue letters of admimistration to an eligible family member or a personal representative who is responsible for managing the property of the deceased. Probate and Administration law contains the regulations and rules to ensure that the executors understand their rights, duties, and the process to ensure that the correct person is appointed. The Probate and Administration Act contains laws relating to the administration of a deceased estate, including the passing of property on death, grants of representation and the law of wills.