In New South Wales, applications for Letters of Administration or Probate out of the estate of the deceased are made to the Supreme Court of New South Wales.
The applicable law provides that upon a grant of probate of a will or grant of administration in an intestacy, all the real and personal estate which the deceased held in New South Wales will vest or pass to the executor or the administrator of the estate of the deceased.
However, the Supreme Court generally will not grant letters of administration or probate to an executor or administrator who lives outside Australia.
Section 72 of the Probate and Administration Act 1898 (NSW) (“PAA”) provides that the executor of the estate or any spouse or next of kin of the deceased applying for a grant of or probate letters of administration who lives overseas or alternatively is engaged on war service may appoint an attorney within the jurisdiction of the New South Wales pursuant to a Power of Attorney and authorise the attorney to act on behalf of the executor or administrator who is not resident of Australia to apply for grant of probate or letter of administration.
However an application by way of an Attorney must be on such terms and conditions as the Court consider fit. Under the provisions of section 72, the grant of administration will remain in force even in the event of the demise of the overseas resident executor or administrator who authorised the attorney in New South Wales.
It is important to remember that ultimately the Supreme Court of New South Wales possesses an inherent power to pass over an executor or administrator of an estate.
Hence even in circumstances that an executor or an administrator is no longer competent or willing to complete his or her duties under the law or if the executor or the administrator lives outside the jurisdiction, the court may, if it deems necessary or appropriate, appoint an alternate executor or administrator (section 74 of the PAA).
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If you are living overseas and are nominated as the executor or administrator of the estate of a deceased who died in New South Wales and/or had assets in New South Wales, or if you are the beneficiary of such an estate please contact our experienced Will & Estate Planning Lawyers Sydney to assist you.
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