Your Authority Begins at the Grant, Not at the Date of Death

From the date of death until a grant issues, an intestate estate is deemed to vest in the NSW Trustee, not in the next of kin. That is the position under the Probate and Administration Act 1898 (NSW), s 61, however close the family.

Only on the grant does the estate vest in the administrator, and s 44 of the same Act backdates that vesting to the date of death. The title relates back. The authority does not, so anything done with estate property before the grant was done without it.

An executor is in a different position: the will appoints them, so their authority exists from the moment of death, and probate confirms it rather than creates it. An executor can act early. An administrator waits.

In practice, an administrator cannot sell a house, close an account or sue a debtor before the grant arrives. The Supreme Court of NSW refuses expedition requests from representatives who sold real estate before obtaining a grant. Once the grant issues, collecting assets, paying debts and lodging the final tax returns run as they do after probate is granted.

There Is No Will, So the Statutory Order Decides

Families often expect the administrator to weigh things up: the son who provided the care, the daughter nobody has spoken to in years, what the deceased wanted. An administrator has no such discretion.

The estate is distributed under the Succession Act 2006 (NSW), Chapter 4, in a fixed order of categories, each exhausted before the next is reached:

• A spouse takes the whole estate where there are no children, or where every child is also the spouse’s child (ss 111 and 112)
• A spouse takes the personal effects, the statutory legacy and half the remainder where any child is not the spouse’s child (s 113)
• Children take the whole estate where there is no spouse, with a deceased child’s share passing down to their own children (s 127)
• Then parents, then brothers and sisters, then grandparents, then aunts and uncles, in that order (ss 128 to 131)
• Where nobody in the order survives, the State takes the whole estate (s 136)

Two rules catch families out. Half-siblings are included, and step-siblings are not, and nobody counts as having survived the deceased unless they survive by at least 30 days.

More: What Is the Statutory Legacy in NSW and How Much Does a Spouse Get?

What a Surviving Spouse Receives

A surviving spouse does not always take everything when there is no will. It depends on whether the deceased left a child who is not also the spouse’s child.

Where such a child exists, the spouse takes the personal effects, then a fixed sum called the statutory legacy, then half of whatever is left. The children share the other half. The legacy comes off the top, so on a modest estate it can absorb nearly everything.

Section 106 of the Succession Act 2006 starts from a base of $350,000 set in 2005 and indexes it to the Consumer Price Index, using the last quarter published before the death. It is fixed by the date of death, not by when you administer the estate.

The NSW Government publishes the statutory legacy as $587,649 as at May 2025. The index has risen since, so the amount is higher for a more recent death. Confirm the figure that applies at your date of death, and interest runs on any part unpaid a year later.

Administration Bonds and Sureties

One document in your grant file tells you whether the Court is still watching, and no executor ever holds it: the administration bond.

Under the Probate and Administration Act 1898 (NSW), s 64, an administrator executes a bond with sureties before the grant issues, conditioned on properly collecting and administering the estate. The penalty under s 65 is the sworn value of the estate.

The Supreme Court’s guidance on applying for letters of administration requires a bond with two sureties where the consents of everyone entitled cannot be obtained. Section 65 lets the Court dispense with the bond, or with one or both sureties.

The bond does not end at the grant. Section 66 lets the Court order a further bond at any time, on the application of anyone interested, and remove the administrator on default. A surety who believes the estate is being wasted can apply for relief under s 68.

Protect Yourself Before You Distribute

Publish a notice of intended distribution before you pay anybody, even though publication is optional. It is the cheapest protection an administrator can buy, and it carries more weight on an intestacy than it does under a will.

The Probate and Administration Act 1898 (NSW), s 92, lets you distribute having regard only to the claims you know about. You must distribute at least six months after the death, publish the notice in the approved form, allow it at least 30 days and let that period expire. Succession Act 2006 (NSW), s 93, gives parallel protection against family provision claims.

The notice is published through the NSW Online Registry in UCPR form 114. The fee is $59, under the Court’s filing fee schedule as at 1 July 2026.

Two clocks keep running past that point. Family provision claims can be made up to 12 months after the death, and where the deceased left more than one spouse, s 125 of the Succession Act requires three months’ written notice before you divide the estate equally.

More: How Does a Notice of Intended Distribution Protect Executors?

What Happens If a Will Turns Up Later

A will surfacing in a drawer six months after the grant is an administrator’s problem and nobody else’s. Your grant was made on the footing that no will existed.

The Court can revoke the administration at any time under the Probate and Administration Act 1898 (NSW), s 66, and a grant of probate or administration with the will annexed is sought in its place. A will disposing of only part of the property leaves a partial intestacy, so Chapter 4 still applies to the rest.

Money already paid out is the part that matters most. Under s 40D, you are not personally liable for payments made in good faith before revocation, and s 90 confirms that payments under a revoked grant are valid.

The people who received those payments have no such protection. Beneficiaries and creditors can follow the assets into the hands of whoever received them, and recover it.

Where an Administrator’s Personal Liability Bites

Pay the wrong relative and the shortfall comes out of your pocket. An administrator who distributes outside the statutory order is personally liable, and a published notice will not always save you.

Section 92(3) of the Probate and Administration Act 1898 (NSW) is the reason. You are deemed to have notice of any entitlement that would have become apparent from a certificate under s 50 of the Births, Deaths and Marriages Registration Act 1995 (NSW). The protection covers claims you could not have known about, not claims the records would reveal.

An executor is rarely exposed, because the will names the beneficiaries. On intestacy, every entitlement is a question of family relationship: a child from an earlier relationship, a de facto partner of two years.

NSW Trustee & Guardian runs a genealogy team to identify and prove the relatives entitled to an estate. Getting the family tree wrong is how administrators lose money.

How Empower Probate Lawyers Can Help

An intestate estate goes wrong in a particular way: the error sits in the family tree and surfaces after the money has gone. The delay compounds it, because plain administration applications are assessed on a materially longer cycle than probate, on the Supreme Court’s own published processing times.

We act for families applying for letters of administration, and advise on who is entitled where someone has died without a will. We also guide administrators through the steps that follow after probate is granted, and the duties of an executor they take on in the same terms.

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

How long after letters of administration are granted before beneficiaries get their money?

Not before six months from the date of death, and usually longer. Family provision claims run for 12 months after death, and the Court expects estates to be administered within a year.

Who gets what if there is no will in NSW?

The Succession Act 2006 sets a fixed order: spouse, then children, parents, siblings, grandparents, and aunts and uncles. Where nobody survives in that order, the State takes the estate.

What is the statutory legacy and how much is it?

A fixed sum the spouse takes before the rest is split with children of another relationship. The NSW Government publishes $587,649 as at May 2025, CPI-indexed and set by date of death.

Can an administrator be removed after letters of administration are granted?

Yes. Another representative or a beneficiary applies, and the Court removes the administrator by revoking the grant. Where a bond was given, it can order removal on default of a further bond.

What happens if a will is found after letters of administration are granted?

The Court can revoke the administration and make a grant under the will. Payments you made in good faith stand, but beneficiaries and creditors can follow the money into recipients’ hands.

Do I have to publish a notice of intended distribution, and what does it cost?

No, publication is optional. It goes through the NSW Online Registry in UCPR form 114 and costs $59 as at 1 July 2026, and must allow at least 30 days.

What is an administration bond and do I still need sureties after the grant?

A bond is security for the estate, executed with sureties before the grant. It stays live afterwards, because the Court can order a further bond and a surety can seek relief.

Does an administrator have the same powers as an executor?

Yes. From the grant onwards an administrator has the same rights and liabilities as an executor. Those powers are subject to any limitation written into the grant itself.