Note to practitioners in Queensland: This guidance note is not applicable in Queensland.

An administration bond is required by s 64 of the Probate and Administration Act 1898 (NSW). The bond is a form of security required by the court in case the administrator improperly benefits him or herself or otherwise acts unlawfully. There are no longer any guarantee companies issuing administration bonds and it may be difficult for the administrator to obtain the necessary sureties. In these cases, the administrator can apply to dispense with the bond.

An administration (or surety) guarantee may be required by the court pursuant to s 37 Administration and Probate Act 1958 (Vic).The guarantee is a form of security required by the court in case the administrator improperly benefits him or herself or otherwise acts unlawfully. There are no longer any insurance companies issuing administration guarantees in Victoria and it may be difficult for the administrator to obtain the necessary sureties. In these cases, the administrator can apply to dispense with the guarantee or can apply jointly with another person.

An administration bond is an undertaking by the administrator that he or she will properly administer the estate, together with a form of security required by the court called a surety (or guarantee) in case the administrator improperly benefits him or herself or otherwise acts unlawfully. There are no longer any guarantee companies issuing administration bonds and it may be difficult for the administrator to obtain the necessary sureties from individuals. In these cases, the administrator can apply to dispense with the bond but is it is at the discretion of the court to dispense with and where there are minor beneficiaries in particular the court may still demand a surety

A surety guarantee is no longer required in South Australia: Administration and Probate (Removal of Requirement for Surety) Amendment Act 2014 .

A trustee company or any person obtaining administration to the use or for the benefit of the Crown shall be required to give bond: s 25 of the Administration and Probate Act 1935 (Tas).

An administration bond can be required by the court pursuant to r 3045 of the Court Procedures Rules 2006 (ACT). The bond is a form of security required by the court in case the administrator improperly benefits him or herself or otherwise acts unlawfully. There are no longer any guarantee companies issuing administration bonds and it may be difficult for the administrator to obtain the necessary sureties. In these cases, the administrator can apply to dispense with the bond: r 3046.

See Administration bond.

Section 63 of the Probate and Administration Act 1898 (NSW) authorises the court to grant administration to the spouse or next of kin or someone trusted to act, including a creditor.

Generally, the applicant for a grant must have an interest in the estate or be entitled to represent an interested person. If there is no such person, the court prefers to make the grant to the NSW Trustee and Guardian.

When there are competing applicants for a grant, the court favours the right of the surviving spouse to that of the children. If the applicants are of equal standing, the court favours the one entitled to the largest share and, if the shares are equal, then the first to apply or the eldest is favoured.

The consents of each person entitled to a grant must be provided or an affidavit filed as to service upon them of a notice of intention to apply.

The Supreme Court has jurisdiction over who has the right to apply for a grant of letters of administration.

The applicant for a grant must have an interest in the estate or be entitled to represent an interested person. When there are competing applicants for a grant, the court favours the right of the surviving spouse to that of the children. If the applicants are of equal standing, the court favours the one entitled to the largest share and, if the shares are equal, then the first to apply or the eldest is favoured.

Rule 610(1) of the Uniform Civil Procedure Rules 1999 (Qld) sets out the order of priority of persons entitled to a grant of letters of administration on intestacy. The surviving spouse, followed by children of the deceased, have the highest priority to a grant.

Generally, the applicant for a grant must have an interest in the estate. If there is no person entitled to share in the estate on intestacy, then the court may appoint any person to be the administrator of the estate.

When there is more than one spouse, the court may make the grant to one or more of them.

There is no need for an applicant to establish priority for a person equal or lower than the applicant in the order of priority.

Section 6 of the Administration Act 1903 (WA) authorises the court to grant administration to any person with an interest in the estate, by reference to the proportion of the estate the person will receive under s 14 of the Administration Act 1903 (WA) including a creditor.

Generally, the court’s intention is to appoint a person who will further the object of administration of the estate and the applicant for a grant must have an interest in the estate or be entitled to represent an interested person. If there is no such person, the court prefers to make the grant to the WA Public Trustee.

When there are competing applicants for a grant, the court favours the person with the greatest interest in the estate. There is no order of priorities of who should claim first. Generally, a surviving spouse will be preferred to that of the children, although the children when massed together may be entitled to a greater share than the spouse, and therefore entitled to have one (or more of them jointly) appointed administrator. If the applicant’s shares are equal, then the first to apply or the eldest may be favored (Re Loveday ).

The consents of each person entitled to a grant must be provided or an affidavit filed as to service upon them of a notice of intention to apply.

Rules 33 and 34 of the Probate Rules 2015 (SA) provide the order of priority to obtain a grant of administration. Rule 33 applies where the deceased left a will and r 34 applies where the deceased died wholly intestate.

Generally, the applicant for a grant must have a beneficial interest in the estate or be entitled to represent an interested person. If there is no such person, then administration can be granted to the Attorney-General if he claims bona vacantia or a grant may be made to a creditor of the deceased or to a person who has no immediate beneficial interest but may have an interest in the event of an accretion thereto.

The spouse of the deceased has priority over the children of the deceased.

Preference will be given to a living person rather than the personal representative of a deceased person who would have been entitled in the same order of priority and similarly a person not under a disability is preferred to a person with a disability.

Rule 36 of the Probate Rules 2015 (SA) does allow for more than one person to apply for a grant.

In SA, the consents of each person entitled to a grant are not required. Rule 37 of the Probate Rules 2015 (SA) allows the Registrar to make a grant to a person entitled in the same order of priority without notice to other persons similarly entitled. For example, one child can apply without notice and without the consent of the other children. However, a dispute between persons entitled to the grant can be brought by summons before the Registrar.

Rule 19 of the Probate Rules 2017 sets out the order of priority of persons entitled to a grant of letters of administration where the deceased died wholly intestate.

Section 12 of the Administration and Probate Act 1929 (ACT) authorises the court to grant administration of an estate to the spouse or next of kin or someone trusted to act, including a creditor.

Generally, the applicant for a grant must have an interest in the estate or be entitled to represent an interested person. If there is no such person, the court prefers to make the grant to the Public Trustee for the Australian Capital Territory.

When there are competing applicants for a grant, the court favours the right of the surviving spouse to that of the children. If the applicants are of equal standing, the court favours the one entitled to the largest share and, if the shares are equal, then the first to apply or the eldest is favoured.

The consents of each person entitled to a grant must be provided or an affidavit filed as to service upon them of a notice of intention to apply.

See Persons entitled to a grant of letters of administration.

The evidence required to support a grant, other than a grant to a de facto spouse, is listed in rr 78.19 and 78.20 of the Supreme Court Rules 1970 (NSW). Different requirements, as set out in these rules, apply depending on the date of death.

In addition there are the basic requirements that must be satisfied.

The evidence required to support a grant is set out in r 4A.04 Supreme Court (Administration and Probate) Rules 2004 (Vic). In addition there are the basic requirements that must be satisfied.

The evidence required to support a grant, is set out in r 609 Uniform Civil Procedure Rules 1999 (Qld).

The evidence required to support a grant, is listed in Rules 9 and 9B , of the Non Contentious Probate Rules 1967 (WA).

In addition there are the basic requirements that must be satisfied.

The evidence required to support a grant are found in Rule 11 of Probate Supplementary Rules 2015 (SA),

The documents required for an application for a grant of letters of administration (where there is an intestacy) include:

• Form 36 Grant;

• Form 44 Oath of Administrator;

• Form 55 Affidavit of Assets and Liabilities; and

• Form 57 — Certificate of Disclosure Registrar’s Certificate.

The documents required for an application for a grant of letters of administration (where there is an intestacy) include:

• Notice of Intention to apply for grant;

• Application for grant;

• Affidavit in support of an application for letters of administration;

• Inventory of Assets and Liabilities; and

• Record of death.

The evidence required to support a grant is set out in r 3005 of the Court Procedure Rules 2006 (ACT). In addition, there are the basic requirements that must be satisfied.

See Documents required for application for grant.

Note to practitioners in Queensland: This guidance note is not applicable in Queensland.

The Affidavit of the applicant for administration requires an annexure of a statement of assets. The assets need to be sufficiently particularised so as to be identifiable. However, it is not necessary to provide particular details for every item. They can be grouped under headings and given an estimated value.

Further, the liabilities also need to be identified and disclosed. The name of the creditor, the nature of the liability and the amount owing at the date of death should be set out.

Assets discovered after the date of the application need to be disclosed to the court by a further affidavit.

Rule 4A(2)(d)(ii) of the Supreme Court (Administration and Probate) Rules 2004 (Vic) sets out the need to file an inventory of worldwide assets and liabilities which is exhibited to the affidavit of administrator.

Assets discovered after the date of the application need to be disclosed to the court by a further affidavit.

The Affidavit of the applicant for administration requires an annexure of a statement of assets and liabilities as set out in r 9B of the Non Contentious Probate Rules and is known as a Rule 9B Statement. The assets need to be sufficiently particularised so as to be identifiable. However, it is not necessary to provide particular details for every item. They can be grouped under headings and given an estimated value.

Further, the liabilities also need to be identified and disclosed in the same manner as assets. The name of the creditor, the nature of the liability and the amount owing at the date of death should be set out as well as the location of the asset or liability and whether it is within or outside Western Australia.

Assets (or liabilities) discovered after the date of the application (unless they are de minimis) need to be disclosed to the court by a further affidavit.

In South Australia, it is important that all known assets (including those outside South Australia) are disclosed as failure to do so may require further disclosure at a later date and result in considerable delays. The Statement of Assets and Liabilities is annexed to an affidavit of the administrator separate to the Oath of Administrator.

Rule 3010 of the Court Procedure Rules 2006 (ACT) sets out the required content of the affidavit supporting the application for the grant of representation. The affidavit of the applicant for administration requires an annexure of a statement of assets. The assets need to be sufficiently particularised so as to be identifiable. However, it is not necessary to provide particular details for every item. They can be grouped under headings and given an estimated value.

Further, the liabilities also need to be identified and disclosed. The name of the creditor, the nature of the liability and the amount owing at the date of death should be set out.

Assets discovered after the date of the application need to be disclosed to the court by a further affidavit.

See Identifying assets and liabilities.

Note to all practitioners: This guidance note is only applicable in New South Wales.

Part 4.4 of the Succession Act 2006 (NSW) applies to the estate of an indigenous person dying after 1 March 2010.

Section 133 of the Succession Act 2006 (NSW) enables an application to be made to the court by either the administrator of the estate or a person claiming an entitlement under the laws, customs, traditions and practices of the indigenous community to which the intestate belonged.

Section 134 of the Act sets out the orders the court can make. The court must have regard to the distribution scheme submitted and the laws, customs, traditions and practices of the indigenous community. It must also be satisfied that the terms of the order are just and equitable.

See Indigenous person’s estate (own special rules).