Managing an estate in challenging circumstances
What Happens to Estate Assets When a Loved One Passes Away?
When someone close to us dies, the last thing we want to worry about is navigating complex legal processes. Yet, one of the immediate consequences is that the assets of the deceased are usually frozen. These assets can’t be accessed or managed until the Court issues a grant of representation to an Executor named in the Will, or to an Administrator if there’s no Will. These individuals, known as legal personal representatives (LPRs), are responsible for handling the estate according to the law.
What Is a Grant of Representation?
A grant of representation is a legal document issued by the Court that empowers the LPR to manage the deceased’s estate. This includes collecting assets, paying debts, and distributing what remains to the rightful beneficiaries. However, obtaining a full grant can sometimes be delayed due to the complexity of the estate, disputes over the Will, or other circumstances. During this period, important assets might need urgent attention or protection, which is where limited and unusual grants come into play.
Limited and Urgent Grants of Representation
There are circumstances where the Court can issue a limited grant of representation, enabling an administrator to act in a specific, temporary, or urgent capacity. These grants provide the authority to manage certain tasks or assets until a full grant can be obtained. Here are some of the most common types:
Letters of Administration - Ad Colligendum Bona
This limited grant allows an administrator, often the executor in the Will or the next of kin, to collect, preserve, and protect the estate’s assets while waiting for a full grant. For example, if the deceased had entered into a property sale contract before passing away and the sale hasn’t settled, this grant enables the administrator to complete the transaction and avoid loss to the estate.
Letters of Administration – Pendente Lite
Issued when litigation is underway (or anticipated) concerning the estate, this grant allows an administrator to recover and preserve estate assets during the legal proceedings. The administrator’s authority typically lasts only for the duration of the litigation and ends once the Court issues a final judgement or a full grant.
Letters of Administration – Ad Litem
This grant enables the administrator to defend, commence, or prosecute legal actions on behalf of the estate. It is often used in situations where urgent legal action is needed and there isn’t enough time to wait for a full grant. Unlike the pendente lite grant, this one specifically empowers the administrator to act in legal proceedings, not just preserve assets.
Unusual Grants of Representation
Beyond the common limited grants, there are less typical situations where the Court may issue unusual grants of representation:
Letters of Administration – Durante Minore Aetate
This is issued when the executor named in the Will is a minor. Since minors cannot legally hold property, the Court may appoint an “appointee” or administrator until the minor comes of age and can complete estate administration.
Letters of Administration – De Bonis Non
If an executor or administrator dies or goes missing before finishing their duties, the Court can issue this grant to appoint someone else to finalise the estate.
Letters of Administration – Durante Dementia
If the person entitled to administer the estate lacks mental capacity or loses it during the process, a suitable person (with standing) may apply to be appointed administrator.
Letters of Administration – Durante Absentia
If the executor or administrator leaves the State or fails to administer the estate within twelve months of death, the Court can appoint a creditor or another interested person to finalise the estate.
Why Do These Grants Matter?
These limited and unusual grants are critical tools in the NSW probate system. They provide flexibility to address urgent or unique circumstances, ensuring estates can be managed or protected even when the usual process is delayed. For families, this means the deceased’s wishes are respected, and assets are safeguarded during what can be a stressful and uncertain period.
Practical Steps for Families
If you’re faced with the death of a loved one and need to manage their estate, consider the following steps:
Seek legal advice early, especially if the estate is complex or there’s a risk of dispute.
Identify all assets and liabilities as soon as possible.
If urgent action is needed (for example, to complete a property settlement or defend legal action), ask your lawyer about the possibility of applying for a limited grant.
Keep detailed records of all actions taken on behalf of the estate.
Further Resources
• Supreme Court of NSW: Probate
