Grant of Probate with Will Annexed?
“Probate with the will annexed” is not an NSW grant. When there is a will but no executor able to apply, a beneficiary applies for letters of administration with the will annexed. The Court then appoints them to administer the estate under the will, subject to consents, notices, or a bond.
On this page
- Introduction
- What the grant means
- When it is required
- No executor named
- Executor died first
- Executor unwilling or unable
- Who can apply
- Documents needed
- Missing original will
- Informal wills
- Getting it right
Introduction
Many people search for a “grant of probate with will annexed” when they are dealing with a will that has no executor able to act. The phrase is understandable, but it is not the grant the Supreme Court of NSW issues. In NSW, probate is only granted to an executor. When there is a will but no executor who can apply, the correct grant is letters of administration with the will annexed.
Applying for the wrong grant leads to requisitions and delay, and the person who applies must meet different requirements. This guide explains when this grant applies, who can apply, and what the Court needs to see.
What the grant means
A grant of letters of administration with the will annexed allows an administrator to manage and distribute the deceased’s estate according to the will. The will is attached, or “annexed”, to the grant, which is where the name comes from. The administrator collects the assets, pays the debts, and distributes the estate to the beneficiaries named in the will.
The Supreme Court describes two kinds of administration.
- Letters of administration apply when the deceased died without a will.
- Letters of administration with the will annexed apply when there is a will, but no executor is available to apply for probate.
The Supreme Court’s fact sheet on administration with the will annexed sets out the requirements in detail.
The grant of probate and will relationship is as such: A will with an available executor leads to probate, and a will without one leads to letters of administration with the will annexed. If the will has codicils, the grant is described as administration with the will and codicils annexed.
When it is required
This grant is needed when there is a valid will and no executor available to apply for probate. The Supreme Court gives these examples:
- the will does not name an executor
- the sole executor died before the will-maker
- the executor is unwilling or unable to act
Uncontested applications are decided by a Registrar on the papers in chambers, so there is no court hearing. The Court will not make the grant if there are no assets in NSW to administer. Whether a grant is needed at all depends on the assets, which our guide on when probate is required in NSW explains.
No executor named
Some wills, particularly homemade ones, never appoint an executor. The will can still be valid, and its gifts still take effect. What is missing is a person with automatic authority to apply for probate.
In that situation, a beneficiary under the will applies for letters of administration with the will annexed. The Court appoints that person as administrator to distribute the estate under the will. If the will is valid but does not deal with the whole estate, part of it may pass under the intestacy rules in Chapter 4 of the Succession Act 2006. The Supreme Court calls this a partial intestacy and recommends legal advice where one is possible.
Executor died first
If the only named executor dies before the will-maker, there is no executor to apply. Many wills anticipate this by naming a substitute executor. The first choice is called the instituted executor, and the alternative is the substitute executor.
Whether the substitute can apply for probate depends on the wording of the will. If the substitution takes effect only if the instituted executor dies first, and that condition is met, the substitute applies for probate in the ordinary way. If the will names no substitute, or the conditions for the substitution have not been met, a beneficiary applies for letters of administration with the will annexed instead.
The position is more complicated where the executor survived the will-maker but died before obtaining probate. The right application in that case depends on the circumstances, and it is worth getting advice before filing.
Executor unwilling or unable
A named executor is under no obligation to take on the role. An executor who does not want to act can renounce probate using UCPR Form 123, provided they do so before a grant is made. Once probate is granted, they cannot renounce, although they can delegate their duties to the NSW Trustee and Guardian or a trustee company under Section 75A of the Probate and Administration Act 1898.
Where there are co-executors and one will neither apply nor renounce, the others can serve a notice requiring them to act under Part 78 Rule 55 of the Supreme Court Rules 1970. If there is only one executor and they will not act, a beneficiary can apply for letters of administration with the will annexed. Legal Aid NSW explains the options when an executor is unwilling or unable to act.
A substitute executor needs particular care here. If the condition for their appointment has not been met, such as where the first executor is alive but unwilling, the substitute cannot apply for probate. If they are also a beneficiary, the Supreme Court confirms they can apply for letters of administration with the will annexed in that capacity.
Who can apply
An executor appointed under the will cannot apply for this grant. The Supreme Court is clear that an executor’s application should be for probate. The applicant for letters of administration with the will annexed is almost always a beneficiary.
The most common applicant is the sole or main beneficiary, although any beneficiary under the will can apply. A person who is not a beneficiary cannot apply on behalf of one who is. For example, an adult child cannot apply on behalf of a surviving parent who is the sole beneficiary. The Court can, however, make a limited grant to:
- the attorney of a beneficiary who lives outside NSW
- the legal guardian of a beneficiary under 18
- the guardian or financial manager of a beneficiary who lacks mental capacity
Where other beneficiaries are not joining the application, the Court may require an administration bond with two sureties to protect their shares. The bond can be dispensed with if those beneficiaries consent in writing and their consent asks the Court to dispense with it.
Documents needed
Most applications are filed online, and the core documents are:
- A summons (UCPR Form 111) and a draft grant (UCPR Form 112)
- An affidavit of the applicant, with the death certificate attached
- An inventory of the estate’s assets and liabilities (UCPR Form 117)
- The original will and any codicils, which the Court keeps
- Consents from, or proof of notice to, beneficiaries who are not applying, or an administration bond
Before filing, the applicant must publish a notice of intended application on the NSW Online Registry. The Court cannot make a grant until 14 days after that notice is published, under Section 42(2)(b) of the Probate and Administration Act 1898. The application should be filed within six months of death. After that, the delay must be explained under Part 78 Rule 16 of the Supreme Court Rules 1970 (NSW).
The applicant’s affidavit also confirms that the will-maker did not marry after making the will, because marriage can revoke an earlier will. If the will-maker married or divorced after signing it, get legal advice before filing.
Evidence requirements are set out in Part 78 Division 3 Subdivision 3 of the Supreme Court Rules 1970. The Court needs an affidavit from an attesting witness when the will has
- unexplained handwritten changes (Part 78.29),
- missing attachments (Part 78.30),
- tears or burns (Parts 78.31 and 78.32), or
- no date (Part 78.28).
Missing original will
If only a copy of the will can be found, the applicant can apply for letters of administration with a copy of the will annexed. The copy itself is filed with the application.
The affidavit must explain where the copy was found and set out every search for the original. At a minimum, that means
- the deceased’s papers,
- any solicitor they used,
- their banks, and
- the NSW Trustee and Guardian.
If the original was last in the deceased’s possession, the law presumes they destroyed it to revoke it. The applicant must provide evidence to rebut that presumption.
The affidavit must also set out who would inherit if there were no will. If those people differ from the beneficiaries under the copy, the Court requires their consent or proof they were served with notice. The grant is limited until the original will is found and proved, and the applicant must undertake to produce the original if it turns up.
Informal wills
A formal will must be signed by the will-maker in front of two witnesses who both saw them sign. A document that falls short of those requirements can still be admitted. Under Section 8 of the Succession Act 2006, the Court can make a grant if it is satisfied the deceased intended the document to be their will.
In that case, the summons must include a claim for a declaration under Section 8, in addition to the grant itself. The affidavit must disclose any earlier will that would take effect if the informal will fails. If there is none, it must set out who would inherit under intestacy. Anyone who would lose out if the informal will is admitted must consent or be served with notice. Those requirements appear in Part 78 Rule 14 and Division 6 of the Supreme Court Rules 1970, with notice given using UCPR Form 134.
Informal will applications take longer to assess and are a common trigger for caveats. A caveat stops a grant being made for six months under Part 78 Division 10 of the Supreme Court Rules 1970.
Getting it right
The terminology in this area confuses a lot of people, and the Court does not correct a mislabelled application for you. It raises a requisition and sends the application back into the queue. Getting the grant type, the applicant’s standing, and the consents right at the outset is what keeps an estate moving.
Buckley Lawyers prepares applications for letters of administration with the will annexed, including those involving copy wills, informal wills, and executors who will not act. If a dispute arises, our contested estates team can help. For the broader picture, read our guide on grant of probate vs letters of administration or visit our grant of probate page.
Contact us today to schedule a consultation.
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