When This Grant Type Applies

This grant sits between two more familiar scenarios and only comes into play in specific circumstances. Understanding which situation applies determines the entire application process.

• The will does not name an executor at all, which happens more often than expected with older or informally drafted wills
• The named executor has died, either before the will-maker or after them but before applying for probate
• The executor is unwilling to act and has formally renounced the role
• The executor lacks capacity to manage the estate, due to illness, injury, or cognitive decline
• The executor cannot be located despite reasonable efforts to make contact

According to the Supreme Court of NSW’s own guidance, this grant applies whenever “the will did not name an executor, or the sole executor has died or is otherwise unwilling or unable to act.” An executor who is willing and able to act should apply for probate instead, not this grant.

How This Differs From Probate and From Straight Intestacy

Three distinct pathways exist for administering a NSW estate, and mixing them up leads to the wrong application being filed.

Grant of probate applies where a valid will exists, and the named executor is able and willing to apply. 

Letters of administration on intestacy apply where no will exists at all, and the estate passes under the statutory rules in dying without a will in NSW. 

Letters of administration with the will annexed sit in between: a valid will exists and sets out how the estate should be distributed, but the person who should administer it under a standard grant of probate is not available.

The practical effect is the same in all three cases. The administrator or executor collects the estate’s assets, pays its debts, and distributes what remains. The difference lies in who has authority to apply and which documents the Supreme Court requires.

Who Can Apply: The Priority Order

Not everyone connected to the estate can apply for this grant. The Court expects the application to come from the person with the strongest legal standing under the will itself.

Ordinarily, the sole or main beneficiary named in the will is the appropriate applicant, though any beneficiary under the will can apply. This differs from intestacy administration, where the priority order runs through next of kin regardless of what any informal wishes might have said. Because the will remains valid here, the people it actually names as beneficiaries carry the strongest claim to administer it.

Where more than one person could apply, such as several beneficiaries with an equal interest, the Court expects them to either apply jointly or explain why one should be preferred over the others. 

A person entitled to apply can also authorise someone else, such as a solicitor acting under their instructions, but the underlying entitlement still has to be established through the will itself.

What the Grant Actually Allows the Administrator to Do

Once issued, the grant carries the same legal weight as probate, even though the person receiving it was never named in the will as executor.

The administrator can present the grant to banks, share registries, and NSW Land Registry Services to have assets transferred into their name for the purpose of administration. 

They must collect in the estate’s assets, pay any outstanding debts and testamentary expenses, and then distribute what remains strictly according to the terms of the will, not according to their own preferences about what might seem fair. 

Acting outside the will’s terms, even with good intentions, can expose the administrator to personal liability in the same way it would expose an executor.

Under section 61 of the Probate and Administration Act 1898 (NSW), the deceased’s estate technically vests in the NSW Trustee and Guardian until a grant is made. Once the grant of administration with the will annexed issues, that authority passes to the administrator named in it.

What Happens When an Executor Renounces

Renunciation is one of the most common triggers for this type of grant, and it follows a specific formal process rather than simply stepping back informally.

A named executor who does not wish to act must formally renounce using UCPR Form 123, a Renunciation of Probate. Once filed, this clears the way for a beneficiary to apply for letters of administration with the will annexed instead. 

An executor who has already started dealing with the estate’s assets, sometimes called intermeddling, may lose the ability to renounce and can be required to complete the administration regardless.

More: Executor’s First 30 Days Checklist: What to Do When Someone Dies in NSW

Documents Needed for the Application

The paperwork required largely mirrors a standard probate application, with some additions specific to this grant type.

• The original will, since the Court still needs to see and approve the testamentary document even though no executor is applying under it
• A certified copy of the death certificate, confirming the date of death and identity of the deceased
• Affidavit of Applicant for Administration with the Will Annexed, prepared using UCPR Form 120, setting out the applicant’s relationship to the estate and entitlement to apply
• Evidence explaining why no executor is applying, such as a death certificate for a deceased executor, a signed renunciation, or medical evidence of incapacity
• A published Notice of Intended Application, the same online notice required for standard probate applications

According to Legal Aid NSW’s step-by-step guidance, applicants generally have six months from the date of death to apply. Applications filed later require an affidavit explaining the delay.

When the Original Will Cannot Be Found

Sometimes the complication is not a missing executor but a missing original will. Where only a copy exists, the Court can still grant administration with a copy of the will annexed, but this is treated as a limited grant rather than a final one.

The grant remains limited until the original will is located and a further application is made in relation to it. In practice, this means the administrator can begin collecting and protecting assets straight away, but the underlying question of which document is the true last will stays open until the original surfaces or its loss is properly accounted for through the same rebuttable presumption of revocation that applies to any missing will.

Partial Intestacy and Mixed Grants

Some estates do not fall neatly into one category. A will might validly appoint an executor and distribute most assets, but fail to deal with everything the deceased owned, creating a partial intestacy.

Where this happens, the same grant of administration with the will annexed can cover the assets the will does address, while the assets it does not address are distributed under the intestacy rules instead. 

This is one of the more technical scenarios in NSW estate administration, and it is worth understanding alongside the statutory legacy rules that can apply to the intestate portion.

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

How Empower Probate Lawyers Can Help

Working out which of the three administration pathways applies, and gathering the right evidence to support it, is where these applications most often go wrong. An application filed under the wrong pathway attracts a requisition and delays the entire estate.

We advise beneficiaries, family members, and executors across NSW on which grant applies to their situation and prepare the supporting affidavit evidence the Supreme Court expects to see. Where renunciation, incapacity, or a missing executor complicates matters, we manage the process from the first consultation through to the final grant.

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

Frequently Asked Questions

What is letters of administration with the will annexed?

It is a grant issued by the Supreme Court of NSW when a valid will exists but no named executor is available to apply for probate, whether because none was named, the executor has died, renounced, or lacks capacity to act.

Who is the right person to apply for this type of grant?

Ordinarily the sole or main beneficiary named in the will, though any beneficiary under the will can apply. This differs from intestacy administration, where the priority order follows next of kin rather than the will’s own beneficiaries.

Can an executor change their mind after renouncing?

Generally no. Once a Renunciation of Probate is filed using UCPR Form 123, the executor has given up the right to apply later, and the estate proceeds to administration with the will annexed instead.

What if the original will cannot be found?

The Court can grant administration with a copy of the will annexed, but this is a limited grant that remains open until the original is located or the presumption that it was destroyed is properly addressed.

How long do I have to apply?

Generally, six months from the date of death. Applications filed after that period need an affidavit explaining the delay, and the longer the delay, the more detailed the explanation the Court expects.

Does this grant give the same powers as probate?

Yes. Once issued, letters of administration with the will annexed give the administrator the same authority as an executor to collect the estate’s assets, pay debts, and distribute according to the terms of the will.

Can the administrator be held personally liable for mistakes?

Yes. An administrator owes the same duties as an executor would, including distributing strictly according to the will. Distributing to the wrong person, paying debts out of order, or acting before the grant is issued can all expose the administrator to personal liability.

What happens if no beneficiary is willing to apply?

If no beneficiary named in the will is willing or able to apply, the application can be made by another person with sufficient interest in the estate, or the NSW Trustee and Guardian may be asked to administer the estate instead.