Part 3.2 Small estates

Division 1 Elections to administer small estates

26   Election to administer where no previous executor or administrator

(cf PT Act, s 18A (1)–(3))

(1)  The NSW Trustee may file an election to administer the estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of applying for probate or administration, if:

(a)  the gross value of the estate in New South Wales, as estimated by the NSW Trustee, is less than the amount prescribed by the regulations for the purposes of this section, and

(b)  no person has obtained probate of the estate or taken out administration, and

(c)  the NSW Trustee is entitled to obtain probate or letters of administration of the estate, and

(d)  the NSW Trustee has made due inquiries as to the will, if the deceased person died testate.

(2)  An election must be sealed by the NSW Trustee and must set out:

(a)  the name, residence and occupation (as far as it is known to the NSW Trustee) of the deceased person, and

(b)  particulars of property forming the deceased person’s estate, and

(c)  the date of the deceased person’s death as then known to the NSW Trustee, and

(d)  if the deceased person died testate, state that, after due inquiries, the NSW Trustee believes that the document annexed to the election is the testator’s last will and that the will has been validly executed according to the law governing the execution of wills.

(3)  On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the executor of the estate or the administrator of the estate.

27   Election to administer where previous executor or administrator

(cf PT Act, s 18A (3A))

(1)  The NSW Trustee may file an election to administer the unadministered estate of a deceased person who died testate or intestate in the registry of the Supreme Court, instead of taking out administration de bonis non, if:

(a)  the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate, and

(b)  part of the estate is unadministered, and

(c)  the gross value of the unadministered part of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and

(d)  the NSW Trustee is entitled to take out administration de bonis non.

(2)  An election must be sealed by the NSW Trustee and must set out:

(a)  the fact of the original grant, and

(b)  the fact of the death of the executor or administrator, and

(c)  particulars of the property left unadministered.

(3)  On an election being filed, the NSW Trustee is taken to have been appointed by the Supreme Court as the administrator de bonis non of the estate.

28   Estate not small estate

(cf PT Act, s 18A (5))

(1)  If, after an election takes effect under this Division, the NSW Trustee becomes aware that the gross value of the estate or the unadministered estate exceeds the amount prescribed for the purposes of making an election, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court.

(2)  The NSW Trustee is not entitled to continue to administer the estate under this Division but must obtain probate or administration in the ordinary manner.

29   Discovery of later will

(cf PT Act, s 18A (5A))

(1)  If, after an election takes effect under this Division, a later will, or a will, is found, the NSW Trustee must file a notice to that effect in the registry of the Supreme Court.

(2)  On filing the notice, the NSW Trustee ceases to be the executor or administrator of the estate and may, if it is otherwise entitled to do so, obtain probate or administration in the ordinary manner or make a new election under this Division.

(3)  If the NSW Trustee does not obtain probate or letters of administration or make a new election under this Division, the Probate and Administration Act 1898 applies as if a grant of probate or administration to the NSW Trustee had been revoked.

Note. See section 40D of the Probate and Administration Act 1898.

30   Notices and elections

(1)  The NSW Trustee must publish, in accordance with the regulations, notice of an election made by, or a notice filed by, the NSW Trustee under this Division.

(2)  A notice under this Division is to be in the form (if any) prescribed by the regulations and to contain the particulars prescribed by the regulations.

(3)  A notice that complies with this section is conclusive evidence that the NSW Trustee is entitled to administer an estate under this Division.

Division 2 Small estates for which probate or administration not required

31   No probate or administration required

(cf PT Act, s 34A)

(1)  This section applies to the estate of a deceased person who died testate or intestate if:

(a)  the net value of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and

(b)  the NSW Trustee has no knowledge of any application having been lodged for probate of the will or for the administration of the estate, and

(c)  the NSW Trustee has given notice in accordance with the regulations of its intention to act under this section.

(2)  The NSW Trustee may deal with the estate as if probate of the will of the deceased person or administration of the estate had been granted to the NSW Trustee.

(3)  The NSW Trustee is entitled to the same commission as it would be entitled to if the NSW Trustee had been granted probate or administration of the estate. The commission is a first charge on the estate.

(4)  The NSW Trustee must deposit any will of a deceased person with an estate to which this section applies in accordance with section 51 of the Succession Act 2006.