What it does
The Probate and Administration Act 1898 (the Act) establishes the framework for the formal recognition of wills and the management of deceased estates in New South Wales. At its core, the Act confers jurisdiction on the Supreme Court to grant probate of a will or letters of administration of an estate where the deceased left property, whether real or personal, in New South Wales (s 40). Once granted, all real and personal estate vests in the executor or administrator from the date of death (s 44(1)), with specific rules for testate, intestate and partially intestate estates.
The Act distinguishes between probate (formal proof of a will, including exemplifications or other formal documents accepted by the Court under s 3) and administration (letters of administration with or without the will annexed, general, special or limited). “Administrator” expressly includes the NSW Trustee and any person to whom administration is granted (s 3(1)). Property held on trust or by way of mortgage vests subject to those equities (s 45). The executor or administrator may sell or mortgage real estate to pay debts and duties (s 46), and the real and personal estate are assets for payment of funeral, testamentary and administrative expenses, debts and liabilities (s 46A).
For solvent estates, assets are applied in the order set out in Part 2 of the Third Schedule: first assets undisposed of by will, then residuary assets, specifically appropriated assets, charged assets, the fund retained for pecuniary legacies, and finally specifically disposed assets rateably (s 46C(2)). Insolvent estates are administered under the bankruptcy rules adapted to the date of death (s 46C(1) and Part 1 of the Third Schedule), giving priority to funeral, testamentary and administration expenses.
The Act contains detailed machinery for grants where an executor is a minor (ss 70–71), where an executor neglects to prove a will (s 75), and for administration during a suit or contested right (s 73). It permits special grants to attorneys (s 72), grants on presumption of death (ss 40A–40B), and revocation where the person presumed dead was in fact alive (s 40C). Once revoked, the former executor or administrator must account but is protected for payments made in good faith before revocation (s 40D).