Probate and Administration Act 1898

The Act’s reach extends to every person dying leaving property in New South Wales. Primary actors are executors named in a will (s 41 permits grant to one or more with leave reserved to others) and administrators appointed by the Court where there is no will, the will does not appoint an executor, or the named executor is unwilling, incompetent or absent (s 74). Spouses (including de facto spouses defined by reference to s 21C of the Interpretation Act 1987 – s 32G) and next of kin have priority for administration grants (s 63). Minors cannot take grants (s 63), so administration durante minore aetate is given to a guardian or other fit person (s 70).

Beneficiaries, whether named in a will or entitled on intestacy under Chapter 4 of the Succession Act 2006 (cross-referenced in s 62(2)), are directly affected by the timing and order of distribution. Creditors are protected by the equal ranking of debts (s 82) and the notice-of-distribution mechanism (s 92). The NSW Trustee and Guardian is given express standing to apply for grants, to act as administrator, and to receive vesting of estates pending grant (s 61). Trustee companies within the meaning of Chapter 5D of the Corporations Act 2001 authorised by New South Wales legislation may also act (s 3(1)).

The Registrar of the Supreme Court (defined in s 3(1) by reference to s 120 of the Supreme Court Act 1970) performs administrative functions, including issuing grants in small estates (Division 4), resealing foreign grants (Division 5), and keeping records (s 152). District agents appointed under the rules may receive applications for small estates not exceeding the prescribed value (currently $15,000 or such other amount fixed by regulation – s 101).

Caveators, persons applying for family provision orders (note to s 42), and purchasers or mortgagees dealing with an executor or administrator are also within the Act’s compass. The Fifth Schedule preserves the pre-1985 position for de facto spouses of persons dying before 1 July 1985, illustrating that the legislation continues to affect estates opened decades ago.

Executors and administrators owe duties to collect assets, pay debts in the statutory order, and distribute to those entitled. They must verify and file inventories and accounts when required by the rules or court order (s 85(1)–(1B)), with stricter obligations where the personal representative is a creditor, guardian of a minor beneficiary, or where a substantial part passes to charity (s 85(1AA)). Commission for pains and trouble may be allowed on passing accounts (s 86), but is disallowed if accounts are neglected without good reason (s 86(2)).

Rights include the power to sell or mortgage real estate for administration purposes (s 46(2)), to carry on the deceased’s business with court authority (s 54), and to make early maintenance distributions to dependent survivors (s 92A). An executor of an executor represents the original testator provided the chain of representation is unbroken (s 44A, inserted 2020). An administrator has the same rights and liabilities as an executor subject to any limitations in the grant (s 74A, also inserted 2020).

Beneficiaries have the right to compel production of accounts (s 85(2)) and may apply for orders as to sale, letting, maintenance of infants, or partition (s 57). A spouse entitled to share in real estate on intestacy must accept its value instead of partition if all other entitled persons so desire (s 53), subject to the election right in s 115 of the Succession Act 2006.

Creditors rank equally (s 82(1)) and cannot obtain priority merely because the debt is owed to the personal representative (s 82(2)). After notice under s 92, they lose the right to disturb a distribution if they failed to notify their claim in time.

The Court holds wide supervisory powers: to revoke grants (s 66), order further bonds (s 66), assign administration bonds (s 67), relieve sureties (s 68), rectify the effect of non-compliance with advertisement or search requirements (s 42(4)–(5)), and make vesting orders on revocation (s 40D(5)).

The NSW Trustee is protected from executing bonds in most cases (s 64(2)–(3)) and may be appointed administrator of last resort (s 63).

The Act relies primarily on civil enforcement rather than criminal sanctions. Failure to file or pass accounts within prescribed times triggers a show-cause procedure; persistent neglect after Registrar notification can result in punishment for contempt or a fine not exceeding 20 penalty units (s 87(3)). The personal representative is also liable for the costs of the enforcement proceedings unless the Court orders otherwise (s 87(4)).

Breach of an administration bond may lead to an order that the Registrar assign the bond to a person who may then sue in their own name as trustee for all interested parties (s 67). The Court may revoke administration, remove the administrator and appoint a replacement with power to sue or be sued on contracts made by the removed administrator (s 66).

Contempt powers support orders to produce testamentary documents (s 150(3)). Where a grant is made on presumption of death only, distribution is prohibited without leave, and failure to give directed notices deprives the personal representative of the protection of s 92 (s 40B(4)).

Revocation of a grant does not invalidate prior lawful payments but permits tracing of assets into the hands of recipients (s 40D(3)). No action lies against the Registrar-General for loss arising from registration of a dealing by an executor or administrator before revocation where that dealing was lawful (s 40D(3A)).

The Act preserves the right to proceed in equity even where accounts have been passed (s 85(4)) and does not prejudice the right to follow assets notwithstanding the protections in ss 92–95.

The Act is not freestanding. Section 3(1) imports definitions from the Supreme Court Act 1970 (Registrar, Rule Committee, Rules, Seal of the Court), the Civil Procedure Act 2005 (Uniform Rules Committee), the NSW Trustee and Guardian Act 2009 (NSW Trustee), the Interpretation Act 1987 (de facto relationship), and Chapter 5D of the Corporations Act 2001 (trustee company). It cross-references the Succession Act 2006 at least 15 times, most importantly for substantive succession and family provision (ss 31, 40A, 42 note, 53, 62(2), 92(2)).

The Real Property Act 1900 governs the mechanics of divesting land from personal representatives (s 46E) and creation of folios on partition (s 58(3)). The Conveyancing Act 1919 is engaged for registration of deeds of appointment under s 75A(8) and interacts with the repealed provisions on dower and courtesy (s 52).

Bankruptcy rules are imported for insolvent estates (s 46C(1)). The Births, Deaths and Marriages Registration Act 1995 is deemed to give notice of claims arising from status changes (s 92(3)).

Transitional provisions in the Fifth Schedule preserve the law in force at the date of death for persons dying before 1 July 1985 (de facto spouses) and before the Succession Amendment (Intestacy) Act 2009. The Act itself repealed earlier statutes (s 2 and First Schedule) and contains savings for rules of court and appointments made under them (s 2(2)–(3)).

Rules of Court made under the Supreme Court Act 1970 or Civil Procedure Act 2005 govern practice and procedure (s 152A). Regulations may prescribe interest rates for legacies (s 84A) and the small-estate threshold (s 153).

The most recent substantive insertion is s 44A (2020 No 24, Sch 1.12[1]), which codifies the chain-of-representation rule for executors of executors. It was added to clarify and modernise a common-law doctrine that had caused uncertainty, particularly where probate of the second will had not been obtained. The section sets out when the chain is broken (intestacy, failure to appoint or obtain probate) and modifies the Act’s executor provisions to the extent necessary.

Section 74A (same amending Act) confirms that an administrator has the same rights and liabilities as an executor, subject to grant limitations. This removed historical doubt about the precise status of administrators.

Earlier, the Succession Act 2006 (assented 2006 No 80) repealed almost the entire Part 1 (wills) and former Division 2A (intestacy), transferring those rules to the new statute. Consequential amendments appear throughout the 1898 Act (e.g. ss 30, 31, 40A, 42, 53, 62, 92). The purpose was to modernise, simplify and harmonise succession law across Australia while retaining the 1898 Act for purely administrative machinery.

The Trustee Companies Amendment Act 2009 updated references to the NSW Trustee and Guardian and trustee companies. The Succession Amendment (Intestacy) Act 2009 and Succession Amendment (Family Provision) Act 2008 made further adjustments to distribution and notice rules, reflected in the Fifth Schedule.

These changes reflect a policy of separating substantive succession (who gets what) from procedural administration (how the estate is managed), reducing overlap and aligning New South Wales with national trends.

The source text does not record specific court decisions, but the legislative history reveals recurring controversies that prompted amendment. The provisions on presumption of death (ss 40A–40C, inserted 1932) were a direct response to practical difficulties where a person disappeared and a grant was needed before the seven-year common-law period. Section 40B(3)–(4) requires the grant to state it is made on presumption only, restricts distribution without leave, and mandates notices and caveats; these safeguards were tightened in 1932, 1970 and 1994 to protect the missing person or later claimants.

The introduction of de facto spouses in s 32G (substituted 1999 No 4, amended 2009 and 2010) generated transitional litigation. The Fifth Schedule, cl 1A (re-enacting former s 4 of the 1984 amending Act) preserves the pre-1 July 1985 law for persons dying wholly or partially intestate before that date, illustrating legislative recognition that retrospective change to intestacy entitlements would be unfair.

The 1989 amendments (Wills, Probate and Administration (Amendment) Act 1989) repealed the privileged-testator rules (former ss 10, 13(2), 17(3)(c), 18(2), 19(2)) because they were considered outdated. The Fifth Schedule, Part 1, cll 3–4 preserve the old law for wills made by minors or privileged testators before the repeal dates, showing awareness of vested rights.

The notice-of-distribution regime (s 92, substantially rewritten in 1977 and 2006) has been controversial because premature distribution can leave creditors or family-provision claimants without recourse. The 2006 insertion of explicit cross-references to family-provision and Indigenous-estate provisions in s 92(2) was designed to prevent inadvertent defeat of those statutory rights. Section 92A (inserted 2006, amended 2007) allowing early maintenance distributions to dependent survivors was a policy response to hardship caused by the former 30-day survival rule.

The account-passing obligations (s 85) and sanctions (s 87) were strengthened in 1981 to address concerns that some personal representatives were failing to account, particularly where charities or minors were involved. The random-selection mechanism in s 85(1AA)(d) reflects a legislative compromise between universal audit (costly) and no audit (risk of abuse).

Most practitioners realise that a grant on presumption of death only (s 40B(2)) prohibits distribution without leave, but fewer appreciate that even after leave is granted the personal representative loses s 92 protection unless court-directed notices were given and any caveat resolved (s 40B(4)). The undertaking or security required can be onerous and is often overlooked at the drafting stage.

The chain-of-representation rule in s 44A looks straightforward, yet subsection (6) provides that if a later executor of the same testator later proves, the representation ceases on that grant. This can trap unwary practitioners who assume an earlier grant of double probate is conclusive.

Section 92(1)(a) requires distribution at least six months after death. The six-month period is measured from actual death, not from grant; distributions made earlier, even with notice, fall outside the statutory protection. Section 92A creates a limited exception for maintenance of a dependent survivor, but only if that survivor would be entitled after the 30-day (or will-specified) survival period; if the survivor dies within the period the distribution is recharacterised as an administration expense, potentially altering tax and creditor priorities.

The small-estate procedure (Division 4) caps at $15,000 or the regulated amount. Many solicitors assume the threshold is higher; using the Division 4 procedure for a $20,000 estate risks the Registrar declining to act (s 106) and requiring a full application, with consequent cost and delay.

Section 81B prohibits completion of disposition of undisclosed assets. The protection for bona-fide purchasers without notice (s 81B(3)) does not extend to the personal representative who knowingly deals with undisclosed assets; personal liability can arise even years later if a later inventory reveals the omission.

Finally, the Fifth Schedule cl 9 preserves the law at date of death for persons dying before the 2009 intestacy amendments. A practitioner administering a 2008 intestate estate must still apply the pre-2009 rules, including the old spouse and de-facto entitlements, notwithstanding that the Succession Act 2006 appears to govern “all” intestacies. Failure to consult the transitional provisions is a frequent source of error.

Compliance begins with a thorough reading of the will (or absence thereof) against the definitions in s 3 and the cross-referenced Succession Act 2006. An application for probate or administration must be preceded by the advertisement required by s 42(2) (not less than 14 days before the application unless a cross-claim) and a search for deposited wills (s 42(3)). The Court may excuse non-compliance (s 42(4)–(5)), but best practice is strict adherence.

Where the estate is small (≤ regulated amount), use the simplified procedure through the Registrar or a district agent (ss 101–106), ensuring all affidavits as to identity, entitlement and value are sworn before an authorised officer.

On grant, ensure the estate vests correctly (s 44) and, if land is involved, attend to registration under the Real Property Act 1900 or registration of deeds as required (s 46E). File an inventory within the time fixed by the rules or court order (s 85(5)). If the personal representative falls within s 85(1AA), accounts must be verified, filed and passed; otherwise the option remains open but is prudent where beneficiaries are minors or charities.

Before any distribution, give notice in the approved form under s 92(1)(b), wait the specified period (≥30 days), and allow at least six months from death. Maintain a claims register; if a claim is received, either admit it or serve a notice under s 93(1) requiring proceedings within three months. For the NSW Trustee or a trustee company, the further two-month notice under s 93(3)–(4) can be used to bar stale claims.

If a dependent survivor exists, consider an early maintenance distribution under s 92A but document the dependency and the statutory entitlement that would arise after the survival period. Set aside a fund for contingent liabilities (s 94) before distributing residue.

When acting as attorney under s 75A, give 28 days’ notice to co-executors and resident beneficiaries of full age; if objection is lodged, obtain court direction before proceeding. For foreign grants, deposit a copy with the Registrar, pay any outstanding duties, publish notice (s 109), and obtain resealing (s 107); security may be required (s 107(3)).

Keep meticulous accounts, claim commission only after proper passage (s 86), and renounce commission in any year where legal costs are to be recovered instead (s 86(3)). If in doubt about any procedural step, seek court direction under s 57 or s 89 rather than risk personal liability on revocation (s 40D) or contempt (s 87).

Finally, diarise all statutory and rule-based time limits, maintain a central register of caveats (s 144), and ensure that any deed of appointment or acknowledgment (ss 75A, 83) is promptly registered and filed. Compliance is not merely mechanical; it requires constant cross-checking against the Succession Act 2006, the rules, and the transitional provisions in the Fifth Schedule that may still govern estates opened many years ago.