Division 3Division 3 Probate and administration
62 Practice as to granting administration of real and personal estate of intestate
(1) The practice and proceedings hitherto in force with reference to granting administration of the personal estate of an intestate shall, save as hereby altered and subject to the rules or Chapter 4 of the Succession Act 2006, be applicable to administration granted hereunder, and so far as may be to administration of real estate, and administration of both real and personal estate may be granted in and by the same letters.(2) Without limiting subsection (1), if a person dies wholly intestate the real and personal estate of the person is to be distributed or held in trust in accordance with Chapter 4 of the Succession Act 2006, and the real estate of that person is to be held as if it were devised to the persons for whom it is held in trust.
63 To whom administration may be granted
The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to:(a) the spouse of the deceased, or(b) one or more of the next of kin, or(c) the spouse conjointly with one or more of the next of kin,or if there be no such person or no such person within the jurisdiction:(i) who is, of the opinion of the Court, fit to be so trusted, or(ii) who, upon being required in accordance with the rules, or as the Court may direct, to apply for administration, complies with the requirement or direction,then to:(d) any person, whether a creditor or not of the deceased, that the Court thinks fit.
64 Administration bond to be executed
(1) Every person to whom a grant of administration is made shall, previous to the issue of such administration, execute a bond to Her Majesty and her successors with one or more sureties conditioned for duly collecting, getting in, and administering the personal estate or real and personal estate of the deceased, which bond shall be in the form directed by the rules.(2) It shall not be necessary for the NSW Trustee or for any person obtaining administration to the use or for the benefit of Her Majesty to execute any such bond.(3) No such bond shall be required to be given by or on behalf of a trustee company, except in respect of estates exceeding $50,000 in value, in which the Court otherwise orders.
65 Amount of penalty in administration bond
Such bond shall be in a penalty equal to the amount under which the property of the deceased is sworn, but the Court may in any case dispense with the bond or with one or both of the sureties, or direct that such penalty be reduced in amount, and may also direct that more bonds than one be given so as to limit the liability of any surety to such amount as the Court thinks reasonable, and may, in place of such bond, accept the security of any incorporated company or guarantee society approved of by the Court in the form and as directed by the rules.
66 Administration may be revoked or further bond required
The Court may at any time, upon the application of any person interested in the estate:(a) revoke the administration already granted, or(b) order the administrator to execute a further bond in such sum and within such time as may seem right with or without sureties as aforesaid, and(c) upon default remove the administrator and appoint an administrator in the removed administrator’s place, with power to sue or be sued upon any contract made by the removed administrator.
67 Order may be made to assign the bond
(1) The Court may, on being satisfied that the condition of any bond given hereunder has been broken, order the Registrar, for and on behalf of Her Majesty, to assign the same to some person to be named in such order.(2) Such person the person’s executors or administrators shall thereupon be entitled to sue upon the said bond in the person’s or their own name or names as if the same had been originally given to the person, and shall be entitled to recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the said bond.
68 Surety may apply to the Court for relief
If, upon application by a surety to an administration bond, it appear to the Court that:(a) the estate is being wasted, or(b) is in danger of being wasted, or(c) the surety is being in any way prejudiced, or in danger of being prejudiced by the act or default of the person administering the estate,the Court may grant such relief as it may think fit, and for the purpose of making such relief effectual may have and exercise all the powers and jurisdiction of a court of equity.
69 Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced
Where, after the passing of this Act:(a) any person renounces probate of the will of which the person is appointed executor or one of the executors, or(b) an executor appointed in a will survives the testator but dies without having taken probate, or(c) an executor named in a will is required in accordance with the rules, or as directed by the Court, to take probate and fails to comply with the requirement or direction,the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator’s estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor.
Where a minor is sole executor, administration with the will annexed may be granted to:(a) a guardian of the person or of the estate of the minor, or(b) such other person as the Court thinks fit,until the minor attains the age of eighteen years, with full or limited powers to act in the premises until probate is granted to the executor or administration is granted to some other person.
71 Who shall have the same power as where administration is granted durante minore aetate of the next of kin
The person to whom such administration is granted shall have the same powers vested in the person as an administrator by virtue of an administration granted to the person durante minore aetate of the next of kin.
72 Administration to be granted to attorney in certain cases
(1) When any person named as executor, or any spouse or the next of kin entitled to probate or administration is out of the jurisdiction or is engaged on war service within the meaning of the Trustee and Wills (Emergency Provisions) Act 1940, but has some other person within the jurisdiction appointed under power of attorney to act for the person, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit.(2) A grant of administration under this section shall continue in force notwithstanding the death of the donor of the power, unless the grant in terms provides that it shall determine on such event.
73 Administration pendente lite and receiver
(1) The Court may:(a) pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, or(b) during a contested right to administration,appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with such full or limited powers and with or without a bond or sureties as the Court may think right.(2) The Court may make such orders for the remuneration of such administrator or receiver out of the personal and real estate of the deceased as it may think right.
74 Power as to appointment of administrator
The Court may, in any case where a person dies:(a) intestate, or(b) leaving a will, but without having appointed an executor thereof, or(c) leaving a will and having appointed an executor thereof, where such executor:if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.(i) is not willing and competent to take probate, or(ii) is resident out of New South Wales,
75 Proceeding where executor neglects to prove will
(1) In any case where the executor named in a will:(a) neglects or refuses to prove the same or to renounce probate thereof within three months from the death of the testator or from the time of such executor attaining the age of eighteen years, or(b) is unknown or cannot be found,the Court may upon the application of:(i) any person interested in the estate, or(ii) the NSW Trustee or a trustee company, or(iii) any creditor of the testator,order that probate of the said will be granted to such executor or order that administration with such will annexed be granted to the applicant or make such other order for the administration of the estate as appears just.(2) (Repealed)
(1) Any person who has been appointed executor of the will of a deceased person and has not renounced or taken probate thereof may by deed appoint the NSW Trustee or a trustee company to be executor of the will in the person’s place or stead or as a co-executor with the person or with the continuing executors (including the appointor), as the case may be, and upon the registration and filing by subsections (8) and (9) directed such will shall be construed and take effect in all respects as if the name of the appointee had been originally inserted in such will as the executor or one of the executors thereof in lieu of the person in whose stead it has been appointed or as an additional executor thereof, as the case may be.(2) Any executor who has obtained probate or any administrator who has obtained letters of administration notwithstanding that the executor or administrator has acted in the administration of the deceased’s estate and notwithstanding the existence of any other executor or administrator may by deed appoint the NSW Trustee or a trustee company to be executor or administrator in the executor’s or administrator’s place or stead or as co-executor or co-administrator with the executor or administrator or with the continuing executors or administrators (including the appointor) as the case may be and upon the registration and filing by subsections (8) and (9) directed the estate of the deceased left unadministered and all rights, powers and obligations in respect thereof shall without any conveyance or other assurance except as otherwise provided in this section vest in the appointee as executor or administrator as the case may be, either solely or jointly with the appointor as the case may be, or, when the appointor is one of several executors or administrators then in the appointee and the continuing executors or administrators or in the appointor, the appointee and the continuing executors or administrators as the case may be, as joint tenants:Provided that where any portion of such estate is:
(a) subject to the provisions of the Real Property Act 1900 such portion shall not vest until either:(i) the appropriate transfer is executed and registered so that such portion is duly transferred, or(ii) an entry of the vesting is made by the Registrar-General. Any such entry shall have the same effect as if the portion were duly transferred, or(b) subject to the provisions of the Closer Settlement Acts, the Crown Lands Act 1989, the Mining Act 1992 or the Offshore Minerals Act 1999 or any other Act relating to Crown lands such portion shall not vest until either:(i) the appropriate transfer is executed and registered so that such portion is duly transferred, or(ii) an entry of the vesting is made in the appropriate register kept under the provisions of the Act to which such portion is subject. Any such entry shall have the same effect as if the portion were duly transferred.Until such transfer is so executed and registered or such entry of the vesting is made, such executor or administrator shall in any case in which the executor or administrator has appointed the appointee in the executor’s or administrator’s place or stead not be discharged from the trusts in respect of such portion of the estate.
An executor or administrator who has appointed the appointee in the executor’s or administrator’s place or stead shall not (except as mentioned in the foregoing proviso) be in any way liable in respect of any act or default in reference to such estate subsequent to the registration and filing of such deed other than the act or default of the executor or administrator or of persons other than the executor or administrator for whose conduct the executor or administrator is in law responsible.
(3) No such appointment shall be made under subsection (1) or subsection (2) if the testator has by the testator’s will directed or intimated that the office of executor should not be delegated or that the proposed appointee should not act in the trusts of the will.(4) Prior to making any appointment under subsection (1) or subsection (2) the person proposing to make such appointment shall give twenty-eight days’ notice in writing thereof to:(a) the co-executor or co-administrator (if any) of such person, and(b) such of the persons entitled beneficially under the will or in consequence of the intestacy of the deceased person of whose will or estate the person proposing to make the appointment is executor or administrator, as are ordinarily resident in the Commonwealth of Australia and have attained the age of eighteen years:Provided that the Court may, on the application of the person proposing to make the appointment, direct that service of any notice required by this paragraph be dispensed with.
(5) Any person who is or who ought to be served or who if the person were ordinarily resident in the Commonwealth ought to be served with the notice required by subsection (4) (whether or not the Court has directed that service of notice on that person be dispensed with) may at any time prior to the expiration of the period of 28 days’ notice given to that person under subsection (4), or, where the Court has directed that service of notice on that person be dispensed with, the period of 28 days after the giving of that direction, lodge with the Registrar a notice in the form approved by a Rule Committee that the person objects to such appointment being made and serve a copy of such notice on the person proposing to make the appointment mentioned in subsection (1) or subsection (2).(6) In the event of any such notice of objection being filed and a copy thereof served as aforesaid:(a) the person proposing to make an appointment under subsection (1) shall not make such appointment unless the Court, on application made by the person, directs that the appointment be made; notice of such application shall be served on such persons as the Court may direct or as may be prescribed by the rules,(b) the person proposing to make an appointment under subsection (2) shall not make such appointment under that subsection.(7) In the case of the appointment of a trustee company the capital both paid and unpaid and all other assets of the company and the manager, assistant manager and directors and their respective estates shall be liable for the due administration of the estates of which the company shall be so appointed executor or administrator.(8) Any such deed as is referred to in subsection (1) or in subsection (2) shall be registered in the office of the Registrar-General in the manner and on payment of the fees prescribed by regulation under the Conveyancing Act 1919.(9) A duly verified copy of any such deed as is referred to in subsection (1) or in subsection (2) shall be filed in the registry of the Court.(10) (Repealed)
76 If executor or administrator out of jurisdiction special administrator may be appointed
If, at the expiration of six months from the death of any person, the executor to whom probate has been granted or the administrator is then residing out of the jurisdiction, the Court may, upon the application of any creditor, legatee, or next of kin, or the NSW Trustee or a trustee company, grant to such creditor, legatee, or next of kin, or the NSW Trustee or a trustee company so applying special letters of administration of such deceased person, nevertheless to cease upon an order being made for the rescission thereof as hereinafter mentioned.
77 Special administrator to make certain affidavits
The person applying for any such special grant as aforesaid shall, in addition to the oath usually taken by administrators, satisfy the Court by affidavit that:(a) the executor or administrator of such deceased person is resident out of the jurisdiction, and(b) except in the case of the NSW Trustee or a trustee company, the applicant is thereby delayed in recovering or obtaining payment of moneys or the possession of goods and chattels, or real estate, to which the applicant is by law entitled, or(c) the estate is liable to loss or waste.
78 On return of original executor or administrator special administration to be rescinded
(1) On the return within the jurisdiction of the executor to whom probate has originally been granted, or the administrator, such executor or administrator may apply to the Court to rescind such special grant of administration.(2) The Court may make an order to rescind such special grant of administration upon such terms and conditions as to security, costs, or otherwise as to the Court may seem reasonable, and thereafter the original probate or administration shall be and remain as valid and effectual as if such special grant of administration had never been made.
79 On order being made for rescission special administrator to account and pay over moneys
Upon any order being made by the Court for the rescission of any grant of special administration as aforesaid, the special administrator shall be bound duly to account to the original executor or administrator, and to pay over all moneys received by the person as special administrator, and then remaining in the special administrator’s hands undisposed of as the Court may order.
80 Original executor or administrator liable although special administration not rescinded
If such executor or administrator neglects to apply for an order for the rescission of such special administration, the executor or administrator shall, notwithstanding that such special administration remains unrescinded, be liable to answer and make good all claims and demands against the estate of the deceased to the extent of the assets which have come to the executor’s or administrator’s hands or which might have come to the executor’s or administrator’s hands but for the executor’s or administrator’s wilful neglect or default, including the neglect herein mentioned.
81 Revocation of grants not to prejudice actions or suits
(1) Where any proceedings at law or in equity have been commenced by or against any executor or administrator lawfully acting as such, and the grant of probate or administration is, pending such proceedings, revoked or rescinded, the court in which such proceedings are pending may order that a suggestion be made upon the records of:(a) the revocation or rescission of such probate or administration, and(b) the grant or restoration of probate or administration which has been made consequent thereon.(2) Thereupon the proceedings shall be continued in the name of the executor or administrator authorised to act as such by such grant or restoration of probate or administration as if the proceedings had been originally commenced by or against such last-mentioned executor or administrator, but subject to such conditions and variations (if any) as such court may direct.(3) If the grant of probate or administration is revoked under the provisions of section 40C the court in which the proceedings are pending may in lieu of the suggestion referred to in subsection (1), order that such suggestion be made as it deems proper, and thereupon the proceedings shall be continued in the name of such person as the court directs as if the proceedings had been originally commenced by or against that person, but subject to such conditions and variations, if any, as the court directs, or the court may stay the proceedings on such terms in respect of costs or otherwise as it thinks just.
81A Disclosure of assets and liabilities of deceased
(1) A person who applies for a grant of probate or administration in respect of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court the assets and liabilities of the deceased.(2) An executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court any assets and liabilities of the deceased which have not previously been disclosed to the Court.
81B Power to deal with assets etc
(1) Nothing in this Part enables an executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 to complete the disposition of, and such an executor, administrator or trustee shall not complete the disposition of, any property of the deceased vested in the deceased which has not been disclosed to the Court pursuant to section 81A (1) or (2).(2) Nothing in subsection (1) prevents an executor or administrator from effecting an appointment pursuant to section 75A.(3) Nothing in subsection (1) affects any interest in any property acquired from an executor, administrator or trustee referred to in that subsection by a person where the interest was acquired in good faith, for valuable consideration and without notice that the property had not been disclosed to the Court pursuant to section 81A (1) or (2).
82 All debts to stand in equal degree, and retainer abolished
(1) In the administration of the estate of every person dying after the passing of this Act, all the creditors of every description of such person shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person whether such assets are legal or equitable, any statute or law to the contrary notwithstanding.(2) In the administration of the estate of any person dying before or after the commencement of this Act, in respect of which probate or letters of administration is or are granted after such commencement, no debt or liability of such person shall be entitled to any priority or preference by reason only that it is due to an executor or administrator of such estate.(3) This Act shall not prejudice or affect any mortgage, lien, charge, or other security which any creditor may hold or be entitled to for payment of the debt concerned.(4) Nothing herein contained shall affect the provisions of any Acts protecting life assurance or other policies against creditors.
83 Executor may sign acknowledgment in lieu of conveyance
(1) When any real estate not under the provisions of the Real Property Act 1900 is devised to any person by a will duly proved under the provisions of this Part, the executor of the will or the administrator with the will annexed may, as such executor or administrator, instead of executing a conveyance to such person, sign an acknowledgment in the form approved by a Rule Committee that the devisee is entitled to such real estate for the estate for which the same is devised for the devisee.(2) Such acknowledgment may be registered under the Acts in force regulating the registration of deeds; and upon registration thereof such real estate shall vest in the devisee for such estate as aforesaid in the same way and subject to the same trusts and liabilities as if the executor or administrator had executed a conveyance of the same.
If the executor or administrator, after requesting in writing, neglects or refuses to:(a) sign such acknowledgment, or(b) execute a conveyance of land devised to the devisee, or(c) pay or hand over to the person entitled any legacy or residuary bequest,the Court may, on the application of such devisee or person, make such order in the matter as it may think fit.
84A Interest on legacies and annuities
(1) Subject to subsection (2), where interest is payable on any legacy or on any arrears of an annuity in accordance with the will or instrument pursuant to which the legacy or annuity is payable or with any enactment or rule of law, that interest shall, unless the will or instrument otherwise provides, or the Court otherwise orders, be payable at the relevant rate or such other rate as may be prescribed in a regulation made under section 153.(2) Where an executor or administrator, in accordance with any power conferred on the executor or administrator in that behalf, appropriates any property in or towards satisfaction of any legacy (other than an annuity), the legatee shall be entitled to the income from the property so appropriated, and interest shall not be payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.(3) In this section, relevant rate of interest means the rate that lies 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.
85 Executor, administrator or trustee to pass accounts
(1) In respect of the estate of a person who died before 31 December 1981 every person to whom probate or administration has been or is granted shall file an inventory of the estate of the deceased and file or file and pass the person’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.(1AA) In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is:(a) a creditor of the estate of the deceased,(b) the guardian of a minor who is a beneficiary of the estate of the deceased,(c) the executor or administrator of the estate where the whole, or a part which, in the opinion of the Court, is a substantial part, of the estate passes to one or more charities or public benevolent institutions,(d) a person, not being a beneficiary, or, in the opinion of the Court, a substantial beneficiary, of the estate, selected at random by the Court, or(e) a person otherwise required to do so by the Court,shall verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.(1A) Every trustee of the estate of a deceased person shall verify and file or verify, file and pass the trustee’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.Nothing in this subsection affects the operation of section 32 of the NSW Trustee and Guardian Act 2009.
(1B) In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is not a person to whom subsection (1AA) applies may verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.(2) Every such person shall be subject to any order that the Court may on the application of any person interested make as to the production and verification of the accounts concerned.(3) The order of the Court allowing any such account shall be prima facie evidence of the correctness of the same, and shall, after the expiration of three years from the date of such order, operate as a release to the person filing the same, excepting so far as it is shown by some person interested therein that an error or omission or fraudulent entry has been made in such account.(4) Where the Court, in passing any such accounts, disallows in whole or in part the amount of any disbursement, the Court may order the executor, administrator or trustee to refund the amount disallowed to the estate of the deceased.Nothing in this subsection alters or diminishes the right of any person to proceed in equity in the same way as if this subsection had not been enacted.
(5) Every executor, administrator or trustee of the estate of a deceased person shall verify and file an inventory of the estate of the deceased within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.
86 Executors etc may be allowed commission
(1) The Court may allow out of the assets of any deceased person to the deceased person’s executor, administrator, or trustee for the time being, in passing the accounts relating to the estate of the deceased person, such commission or percentage for the executor’s, administrator’s or trustee’s pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct.(2) No such allowance shall be made to any executor, administrator, or trustee who neglects or omits without good reason to pass the accounts relating to the estate of the deceased person pursuant to the rules or an order of the Court.(3) Where any executor, administrator or trustee renounces the executor’s, administrator’s or trustee’s right to such commission in respect of any particular year, the executor, administrator or trustee shall be entitled to indemnity out of the said assets for the amount of the executor’s, administrator’s or trustee’s Australian legal practitioner’s charges and disbursements, as moderated in accordance with the relevant professional scale, for non-professional work performed in that year, to an amount not exceeding that which the executor, administrator or trustee would have been in the opinion of the Court allowed by way of such commission for that year had the executor, administrator or trustee not so renounced but had applied therefor.
86A Reduction of excessive commission etc
Where the Court is of the opinion that a commission or amount charged or proposed to be charged in respect of any estate, or any part of any such commission or amount, is excessive, the Court may, of its own motion, or on the motion of any person interested in the estate, review the commission, amount or part and may, on that review, notwithstanding any provision contained in a will authorising the charging of the commission, amount or part, reduce that commission, amount or part.
87 Effect of neglect to file etc inventory or accounts
(1) Where an executor, administrator or trustee neglects to file, or verify and file, an inventory of the estate of the deceased or to file, or file and pass, or verify and file, or verify, file and pass, the accounts relating to the estate in accordance with a requirement made by or under section 85 within one month after the expiration of the time fixed for compliance, the Registrar shall cause the executor, administrator or trustee to be notified of the executor’s, administrator’s or trustee’s neglect.(2) Where, on the expiration of one month after having been so notified, an executor, administrator or trustee further neglects to comply with the requirement in respect of which the notification under that subsection was given, the Court may, of its own motion, order the executor, administrator or trustee to show cause before the Court why the executor, administrator or trustee should not be ordered to file, or verify and file, an inventory of the estate of the deceased or to file, or file and pass, or verify and file, or verify, file and pass, the accounts relating to the estate, as the case may require, in the Court forthwith.(3) Where an executor, administrator or trustee to whom subsection (2) applies fails to show cause as referred to in that subsection, the executor, administrator or trustee shall be liable to punishment for contempt of court or to the payment of a fine not exceeding 20 penalty units.(4) An executor, administrator or trustee to whom subsection (2) applies shall, unless the Court otherwise orders, be personally liable for the cost and expenses of any proceedings pursuant to this section.
88 Proceedings under section 87 not to prejudice proceedings on bond
Proceedings being taken under the last preceding section shall not prejudice the right to proceed against the executor, administrator or trustee for an account and administration, or prevent the Court from ordering the assignment of any bond to any person with a view of enforcing the penalty thereof as hereinbefore mentioned.
89 Judge may make order as to disposal of moneys in hands of executor etc
(1) The Court may make such order with reference to the distribution or application of any moneys which the executor or administrator or NSW Trustee may have in hand, or as to the residue of the estate as it may think fit.(2) No final order for distribution shall be made except upon notice to all the parties entitled.
90 Payments under revoked probates or administrations valid
(1) (Repealed)(2) The executor or administrator who has acted under any revoked or rescinded probate or administration may retain and reimburse the executor or administrator or shall be entitled to be reimbursed in respect of any payments made by the executor or administrator which the person to whom probate or administration is afterwards or was originally granted might have lawfully made.
91 Persons etc making payments upon probates granted for estate of deceased person to be indemnified
(1) All persons making or permitting to be made any payment or transfer, bona fide, upon any probate or administration or order granted in respect of the estate of any deceased person under the authority of this part shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or administration or order not then known to such persons.(2) In respect of the estate of a person who dies on or after 31 December 1981, the indemnity and protection conferred by subsection (1) shall apply only in relation to property of the estate of the deceased which is listed in a document issued by the Court in relation to the probate, administration or order.
92 Distribution of assets after notice given by executor or administrator
(1) The executor or administrator of the estate of a testator or an intestate may distribute the assets, or any part of the assets, of that estate among the persons entitled having regard to the claims of beneficiaries (including children conceived but not yet born at the date of the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of which the executor or administrator has notice at the time of distribution if:(a) the assets are distributed at least 6 months after the testator’s or intestate’s death, and(b) the executor or administrator has given notice in the form approved under section 17 of the Civil Procedure Act 2005 that the executor or administrator intends to distribute the assets in the estate after the expiration of a specified time, and(c) the time specified in the notice is not less than 30 days after the notice is given, and(d) the time specified in the notice has expired.(2) An executor or administrator who distributes the assets or any part of the assets of the estate of a testator or an intestate in accordance with subsection (1) is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor or administrator had notice of the claim at the time of the distribution or the distribution was not made in the circumstances described in subsection (2) (a) or (b) of section 28 (Protection of personal representatives who distribute as if will had not been rectified) or section 125 (Sharing between spouses) or 126 (Distribution orders) or Part 4.4 (Indigenous persons’ estates) of the Succession Act 2006.(3) In relation to a distribution of the assets of a testator or intestate dying after the commencement of the Children (Equality of Status) Act 1976, an executor or administrator referred to in subsection (2) shall be deemed to have notice of the claim of any person whose entitlement to the assets or to any part of them would have become apparent if the executor or administrator had applied for and obtained a certificate under section 50 of the Births, Deaths and Marriages Registration Act 1995.
92A Personal representatives may make maintenance distributions within 30 days
(1) This section applies if a person (the survivor):(a) survives a deceased person, and(b) at the time of the deceased person’s death, was wholly or substantially dependent on the deceased person, and(c) will be entitled to part or all of the deceased person’s estate if the person survives the deceased person for 30 days or, if that or another period for survival appears in the will, within the period appearing in the will (the specified period).(2) The executor or administrator of the deceased person’s estate may make a distribution that is an adequate amount for the proper maintenance, support or education of the survivor at any time after the death of the deceased person, including within 30 days, or the specified period, after the death of the deceased person.(3) The executor or administrator may make the distribution even though the executor or administrator knows, when the distribution is made, of a pending application, or an intended application, for an order under the Family Provision Act 1982 in relation to the deceased person.(4) The executor or administrator is not liable for a distribution under subsection (2) that is made in good faith.(5) An amount distributed under subsection (2) to a survivor must be deducted from any share of the estate to which the survivor becomes entitled.(6) However, if the survivor does not survive the deceased person for 30 days, or the specified period, the distribution is to be treated as an administration expense.(7) An authorised deposit-taking institution does not incur any liability in relation to any transaction concerning an account of the deceased person kept with the institution or with some other financial institution that it is authorised to make by the executor or administrator of the deceased person for the purposes of a distribution under subsection (2).(8) Subsection (7) does not relieve an authorised deposit-taking institution from any liability or obligation it would have apart from that subsection.
93 Claims barred against executor or administrator in certain cases
(1) When the executor or administrator of the estate of a testator or an intestate has published the notices referred to in section 92 (1) and a claim in respect of the assets of that estate is submitted to the executor or administrator, the executor or administrator may, if the executor or administrator disputes the claim, serve on the person by whom or on whose behalf the claim was submitted a notice calling on the person to take proceedings to enforce the person’s claim within a period of 3 months from the date of service of the notice and to prosecute the person’s claim.(2) If, after a notice has been served on a person in accordance with subsection (1) and the period of 3 months referred to in the notice has expired, that person does not satisfy the Court that the person is prosecuting the person’s claim, the Court may, on an application in that behalf made by the executor or administrator:(a) make an order barring the claim of that person as against the executor or administrator, subject to such conditions (if any) as it thinks just and equitable, or(b) make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.(3) Where:(a) in its capacity as executor or administrator, the NSW Trustee or a trustee company:(i) disputes any claim upon an estate (whether the claimant claims to be a creditor or to have a beneficial interest in the estate), and(ii) has served on the claimant a notice in accordance with subsection (1), and(b) the claimant has not, within the period of 3 months referred to in the notice served in accordance with subsection (1), commenced proceedings to enforce the claim,the NSW Trustee or the trustee company may serve a further notice on the claimant that unless, within the period of 2 months from the date of service of that further notice, the NSW Trustee or the trustee company is duly served with process of court issued in proceedings to enforce the claim, the NSW Trustee or the trustee company will distribute the estate without regard to the claim.(4) If, within the period of 2 months referred to in a notice served on a claimant in accordance with subsection (3), the NSW Trustee or a trustee company has not been duly served with process as referred to in that subsection, the claimant’s claim shall thereupon be barred and become irrecoverable as against the NSW Trustee or the trustee company and the NSW Trustee or the trustee company may proceed to distribute the estate without regard to the claim.(5) The NSW Trustee or a trustee company may, if it thinks fit, waive any objection which it might, by virtue of subsection (4), take to proceedings commenced by a claimant after the expiration of the period of 2 months referred to in a notice served on the claimant in accordance with subsection (3).(6) The powers conferred on the NSW Trustee or a trustee company by subsections (3) and (4) are in addition to the powers exercisable under subsection (2).
94 Distribution of estate by executor or administrator
(1) Where the executor or administrator of the estate of a testator or an intestate:(a) is, in the executor’s or administrator’s capacity as such, liable in respect of:(i) the rents, covenants or agreements contained in a lease, or in an agreement for a lease, granted or assigned to the testator or intestate, or(ii) the rents, covenants or agreements contained in any conveyance on chief rents or rent charges, or in an agreement for any such conveyance, made and entered into with the testator or intestate, and(b) has:the executor or administrator may distribute those assets of the estate remaining in the executor’s or administrator’s hands among the parties entitled without appropriating any part or any further part of those assets, as the case may be, to meet any future liability under the lease, agreement for a lease, conveyance or agreement for a conveyance.(i) satisfied all liabilities under the lease or agreement for a lease, or, as the case may be, under the conveyance or agreement for a conveyance, that have accrued and been claimed up to the time of the assignment or conveyance referred to in subparagraph (iii),(ii) set aside an amount sufficient to meet any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee or grantee to be expended in respect of the property leased or agreed to be leased, or conveyed or agreed to be conveyed, although the period for expending that sum may not have arrived, and(iii) assigned the lease or agreement for a lease or conveyed the property or assigned the agreement for the conveyance of the property, as the case may be, to a purchaser or to a legatee, devisee or other person entitled,(2) An executor or administrator who:(a) has assigned a lease or an agreement for a lease, made or executed a conveyance or assigned an agreement for a conveyance, as referred to in subsection (1) (b) (iii), and(b) has, where necessary, set aside a sufficient amount as referred to in subsection (1) (b) (ii),shall not be personally liable in respect of any subsequent claim under any such lease, agreement for a lease, conveyance or agreement for a conveyance.(3) In this section:assignment and conveyance include an acknowledgment within the meaning of section 83.
lease includes an under lease.
Nothing contained in section 92, 93 or 94 prejudices the right of any beneficiary, creditor or other person who has a claim in respect of the assets of the estate of a testator or an intestate or the right of a lessor or grantor under a lease, agreement for a lease, conveyance or agreement for a conveyance referred to in section 94, or any person claiming under any such lessor or grantor, to follow those assets or any part of those assets into the hands of the persons or any of the persons among whom those assets or that part may have been distributed or who may have received those assets or that part.
97 Every executor etc to be deemed resident in New South Wales
(1) Every executor or administrator:(a) named in any probate or letters of administration granted by any court of competent jurisdiction in any portion of Her Majesty’s dominions and making application under the provisions of Division 5 for the sealing of such probate or administration, or(b) appointed under this Part,shall be deemed to be resident in New South Wales.(2) Where not actually so resident, the executor or administrator shall, before the issue or sealing of any probate or administration, file with the Registrar an address, as prescribed by the rules, within New South Wales, at which notices and processes may be served upon the executor or administrator; and all services at such registered address shall be deemed personal service.