When someone dies without a valid Will, their estate does not fall into a legal vacuum. Instead, a different process applies. Rather than probate, an eligible person must apply to the Supreme Court of NSW for letters of administration.
In practice, estates without a Will are often more complicated than those that have one. There is less clarity, more scope for disagreement, and a greater risk of delay. This article explains how letters of administration work in New South Wales, who can apply, and where issues commonly arise.
Dying without a Will: what it actually means
If a person dies without a valid Will, they are said to die intestate. That does not mean their assets are divided arbitrarily, but it does mean the law steps in to determine both:
The distribution of the estate is governed by a statutory formula. That formula may or may not reflect the deceased’s personal relationships, intentions, or family dynamics. Stepchildren, long-term partners, and others the deceased supported during their lifetime are often surprised to discover they are not automatically entitled under the intestacy rules.
What are letters of administration?
Letters of administration are a grant made by the Supreme Court authorising a person to administer the estate of someone who died without a Will.
The administrator’s role is broadly similar to that of an executor. They collect assets, pay debts and taxes, and distribute what remains. The key difference is that an administrator is not carrying out the deceased’s wishes. They are administering the estate strictly according to the statutory order of entitlement.
In many estates, that distinction matters more than people expect.
Who is entitled to apply?
The Court applies a priority order when deciding who may apply for letters of administration. Generally speaking, priority is given to:
a surviving spouse or de facto partner,
children of the deceased,
other close relatives in descending order.
Where there are multiple people of equal priority, such as adult children, the Court may require either:
Disputes about who should act as administrator are common, particularly in blended families or where relationships are strained.
When the process becomes contested
Applications for letters of administration are more likely to be contested than probate applications. Common reasons include:
disagreement between family members about who should administer the estate,
disputes about the deceased’s marital or de facto status,
uncertainty about whether a Will exists or once existed, or
concerns about an applicant’s suitability to act.
In some cases, the Court may appoint an independent administrator if it considers that family members cannot administer the estate impartially.
The application process in practice
The application process itself is similar to probate, but it usually requires more supporting evidence. The applicant must establish:
the fact of death,
that the deceased died without a valid Will,
their relationship to the deceased, and
that they are entitled to apply ahead of others.
Affidavits are required, and where relationships are disputed, additional evidence may be needed. This is one of the areas where informal or rushed applications often run into difficulty.
Administering the estate without a Will
Once letters of administration are granted, the administrator’s duties mirror those of an executor. Assets must be identified, protected, and collected. Debts and tax must be paid. Records must be kept.
The difference lies in distribution. The administrator does not have discretion. Assets must be distributed according to the intestacy rules, even if the outcome appears unfair or inconsistent with what the deceased may have wanted.
This rigidity is often where disputes escalate.
Intestacy and family provision claims
Dying without a Will does not prevent family provision claims. In fact, intestate estates are frequently the subject of such claims.
Eligible persons have 12 months from the date of death to bring a claim seeking adequate provision. Administrators who distribute too early risk personal liability if a claim later arises and the estate has already been depleted.
As with probate estates, caution and timing are critical.
Common misconceptions
There are a few misconceptions administrators regularly encounter:
“The closest relative automatically administers the estate.”
Not always. Priority can be challenged, and suitability matters.
“Everything goes to the spouse.”
Not necessarily. The intestacy formula is more nuanced, especially where there are children from previous relationships.
“Letters of administration are simpler than probate.”
Often the opposite is true.
Why estates without Wills are riskier
From a practitioner’s perspective, estates without Wills tend to:
None of this is because administrators act improperly. It is because the process lacks the clarity and direction a properly drafted Will provides.
When professional advice matters most
Advice is particularly important where:
there is uncertainty about who should apply,
family relationships are complex,
there are assets such as property or business interests, or
there is a real risk of a family provision claim.
Early advice often avoids later conflict, especially in estates where emotions are already running high.
Key takeaway
Letters of administration provide a mechanism to deal with estates where there is no Will, but they rarely produce straightforward outcomes. The absence of a Will removes clarity at the very point it is needed most.
From both an administrative and risk perspective, estates without Wills are usually more difficult to manage than those with clear testamentary instructions.
Getting help with letters of administration
At Thornton + King we have a team of wills and estate specialist lawyers who can help with applying for letters of administration. We’ve been providing advice on wills and estates since 1924, so there isn’t much that we haven’t seen or done before. To speak to an expert estate lawyer, give us a call or submit an enquiry now.
