When a person dies without a valid will and leaves assets in New South Wales, the next of kin may need to apply to the Supreme Court of NSW for a grant of letters of administration. The process raises further legal and tax questions when the deceased estate is located outside Australia and the entitled relatives reside overseas, making advice from wills and estate planning lawyers at LawBridge particularly valuable.

This article explains how overseas next of kin can obtain letters of administration in NSW, the choice between a fresh grant and a reseal of an existing foreign grant, and the tax consequences of a non-resident administrator for the estate.

Interactive Tool: See If You Qualify for a Reseal or Need a Fresh Grant

The Process for Overseas Beneficiaries to Obtain Letters of Administration in NSW

Eligibility Requirements & Time Limits for Next of Kin

An application for letters of administration should be filed within six months of the date of death. Part 78 Rule 16 of the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules‘) requires an explanation for a later filing, either in the administrator’s affidavit or a separate affidavit of delay.

Under Chapter 4 of the Succession Act 2006 (NSW) (‘Succession Act‘), the next of kin entitled to apply is identified through the rules of intestacy. The order usually begins with:

• spouse or de facto spouse, who takes the whole estate where all children of the deceased are also children of that spouse;
• children, where there is no surviving spouse or where a child is not also a child of the surviving spouse;
• parents;
• brothers and sisters;
• grandparents; and
• aunts and uncles.

Each category must be exhausted before the next category is considered. People in the same category may apply jointly. If only some entitled relatives apply, the others must provide consent or receive notice of the intention to apply.

The Appointment of an Attorney in NSW for Representation

A person entitled to a share of the estate may use a power of attorney where that person lives outside NSW. The Supreme Court of New South Wales may make a grant of administration to the appointed attorney, allowing the attorney to manage the deceased estate locally.

The grant is limited and is expressed to be for the use and benefit of the entitled person. This arrangement allows an overseas beneficiary or next of kin to obtain authority to deal with assets in New South Wales without applying personally from outside Australia.

The Choice Between a New NSW Grant & a Reseal for Foreign Estates

Eligibility Criteria for a Commonwealth Realm Reseal

A foreign grant may be resealed by the Supreme Court of NSW where it was issued by a court in a Commonwealth Realm country in which the Queen is, or was when the grant was issued, the Head of State. 

Under Section 107 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘), resealing allows the foreign grant to take effect in NSW for assets located in NSW.

Eligible countries include:

• The United Kingdom, including England, Scotland, Wales and Northern Ireland; and
• New Zealand, Papua New Guinea and the Solomon Islands.

The original grant, an exemplification, or a court-sealed and certified copy must be produced to the Supreme Court of NSW. Once resealed, the foreign grant has the same force and effect in NSW as if it had been granted by the Supreme Court of NSW.

Scenarios Requiring a Fresh Grant of Administration

A fresh grant in NSW may be required when the foreign grant comes from a country that is not eligible for resealing. The Supreme Court of NSW cannot reseal recent grants from:

• Malta;
• South Africa;
• Pakistan;
• India;
• Sri Lanka;
• Fiji;
• Hong Kong; or
• the Republic of Ireland.

The form of the NSW application depends on the original foreign grant and whether the deceased left a will. 

A foreign probate grant may require an application for a grant of probate in NSW, while an overseas grant of administration with the will annexed may require probate or administration with the will annexed based on a copy of the will. If the deceased died without a will, a fresh grant of administration in NSW is required.

Tax Residency Rules for Deceased Estates Administered from Abroad

The Distinction Between a Resident Trust & a Non-Resident Trust

For Australian tax purposes, a deceased estate is treated as a trust and is classified as either a resident trust or a non-resident trust. This classification depends mainly on the residency of its executor, administrator or trustee and the location of its central management and control.

Under the Income Tax Assessment Act 1936 (Cth) (‘Income Tax Assessment Act‘):

• an estate is a resident trust if at least one trustee is an Australian tax resident at any time during the relevant income year; and
• an estate may be treated as a non-resident trust where probate or a grant of administration is given to an executor or administrator who is not an Australian resident.

The Importance of Central Management & Control in Australia

An estate may still qualify as a resident trust if its central management and control occurs in Australia during the relevant income year. This concerns where high-level decisions about matters such as selling or investing estate assets are made.

The Australian Taxation Office may require evidence that those decisions occurred in Australia. Instructions given by Australian family members to an overseas executor may support this position; however, records must demonstrate that the estate’s high-level decisions and management were made in Australia.

Financial & Tax Consequences of a Non-Resident Administrator

Loss of the Capital Gains Tax Discount & Tax-Free Threshold

A deceased estate administered by a non-resident administrator may be treated as a non-resident trust for Australian tax purposes. This can revoke access to the 50% capital gains tax discount that may otherwise apply when estate assets have been held for at least 12 months.

The estate may also lose the $18,200 tax-free threshold available during the first three income years after the deceased’s death. Investment income earned in Australia may then result in a higher tax liability because the estate is taxed as a non-resident.

The Impact of the Foreign Resident Capital Gains Tax Withholding Regime

When a foreign resident administrator sells Australian land, the foreign resident capital gains tax withholding regime may apply regardless of the contract price. The purchaser must withhold 15% of the purchase price and remit it to the Australian Taxation Office as non-final withholding tax.

The estate’s final capital gains tax liability is determined when the administrator lodges the estate’s tax return. A refund may be available if the amount withheld exceeds the final liability.

Practical Strategies for Attorneys & Families to Minimise Estate Taxes

The Benefits of an Australian Resident Administrator

Appointing an Australian resident administrator can allow a deceased estate to be treated as an Australian resident trust for tax purposes. The administrator may be a family member, trusted individual, licensed trustee company, accountant or lawyer.

As explained above, resident trust status preserves key concessions including the 50% capital gains tax discount and the $18,200 tax-free threshold. An Australian resident administrator may also obtain an Australian Taxation Office clearance certificate, which can remove the purchaser’s obligation to withhold tax when estate property is sold.

Conclusion

A NSW application for letters of administration requires careful attention to eligibility, the six-month filing period, and the correct form of representation. The choice between a fresh grant and a reseal can affect how authority is obtained, while administrator residency may affect the estate’s tax treatment and available concessions.

With these issues considered together, contact wills and estate planning lawyers at LawBridge to discuss the estate, including overseas beneficiaries, NSW Court applications, reseals and cross-border tax concerns. Legal advice can help clarify the appropriate grant, representation arrangements and steps for managing the deceased estate.

Frequently Asked Questions

An administrator who obtains letters of administration performs the same estate-management work as an executor, but without a Will that contains a remuneration clause. Section 86 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act’) gives the Supreme Court of New South Wales power to allow commission for an administrator’s pains and trouble.

This article explains how an administrator can seek commission, the process of passing accounts, and when beneficiary agreement can avoid a formal Court application.

Interactive Tool: See If You Can Claim Commission as an Estate Administrator in NSW

The Right to Claim Commission for Administrators

The Legal Basis for Remuneration

An administrator may apply for commission for the time and effort involved in administering an estate. 

Under Section 86 of the Probate and Administration Act, the Supreme Court of NSW may allow a commission or percentage from the estate’s assets for the administrator’s endeavour, if the amount is just and reasonable.

However, the commission is not automatic. Section 86 of the Probate and Administration Act also provides that no allowance may be made where an administrator, without good reason, fails to pass the accounts relating to the deceased estate as required by the applicable rules or a court order.

Differences Between an Executor and an Administrator

An executor is appointed by a Will and may have a Will-based entitlement to payment, such as a remuneration clause or a legacy connected with accepting the role. 

By contrast, an administrator obtains authority through a grant of letters of administration, including administration with the Will annexed, rather than through appointment under the Will.

An administrator may perform substantial work to protect assets, pay debts and distribute the estate, even though the Will does not provide a charging clause for that work, and wills and estate planning lawyers advising on deceased estate administration and administrator remuneration can help clarify the position. 

Section 74A of the Probate and Administration Act gives an administrator the same rights and liabilities, and makes the administrator accountable in the same way, as if the administrator were the executor of the deceased person.

Reaching an Agreement with Beneficiaries 

Obtaining Informed Consent from Beneficiaries

An administrator may resolve payment of commission through agreement with the affected beneficiaries, rather than applying to the Supreme Court of New South Wales. 

The agreement should cover a fair amount for the time and effort involved in the administration of the estate.

All affected beneficiaries, usually the residuary beneficiaries, must:

• be adults with legal capacity; and
• agree to the proposed payment.

If those beneficiaries consent to the commission, the administrator does not need formal Court approval before being paid from the estate.

The Impact of Beneficiary Agreement on Estate Costs

A beneficiary agreement can avoid the legal costs involved in an application to pass accounts and apply for commission. Those costs can be substantial and are normally paid from the estate, reducing the amount available for distribution to the residual beneficiaries.

A formal application also requires time for the administrator to prepare documents and for the Court to consider the request. This may delay the final distribution of the estate to the beneficiaries.

The Process of Passing Accounts for Administrators 

The Obligation to Keep & File Probate Accounts

An administrator must:

• protect the estate;
• collect the assets of the deceased;
• pay funeral and testamentary expenses and debts; and
• distribute the balance under the Will or intestacy laws.

The administrator must also keep probate accounts recording how the estate was managed and report to the beneficiaries.

In addition, under Section 85 of the Probate and Administration Act, verified accounts must be filed in specified circumstances, including where:

• the administrator is a creditor of the estate;
• the administrator is guardian of a minor beneficiary; or
• the estate substantially passes to a charity or public benevolent institution.

Applying to the Supreme Court to Pass Accounts

Proceedings to pass accounts must be commenced by filing a notice of motion in the parent proceedings under Part 78 Rule 76 of the Supreme Court Rules 1970 (NSW) (‘NSW Supreme Court Rules). The motion and supporting affidavit are prepared using UCPR Form 150, with the filing fee payable where formal verification and passing are sought.

Under Part 78 Rule 79 of the NSW Supreme Court Rules the administrator must publish a notice on the New South Wales Online Registry at least 14 days before commencing the proceedings.

The Registrar may require further evidence or documents and may pass the accounts if satisfied they are correct under Part 78 Rule 83 of the NSW Supreme Court Rules.

How the Supreme Court Determines Commissions

Assessing Pains and Trouble in Estate Administration

The Supreme Court may allow an administrator commission for the “pains and trouble” involved in administering a deceased estate under Section 86 of the Probate and Administration Act

The two terms are understood as follows:

• “Pains” refers to the responsibility, anxiety and worry associated with the administration of the estate.
• “Trouble” refers to the actual work completed by the administrator, such as dealing with estate assets, completing required tasks and arranging distribution.

Key Factors Influencing the Commission Award

Commission is discretionary and depends on the circumstances of each estate. The Registrar may consider:

• the size and complexity of the estate;
• the complexity of the Will or distribution scheme;
• the promptness, efficiency and diligence shown;
• the number and nature of routine and complex tasks;
• the amount of work completed and time spent;
• the level of responsibility involved;
• problems encountered during administration; and
• the number of administrators sharing the work.

An administrator seeking commission should provide evidence addressing the work performed, time spent and any difficulties encountered. The assessment focuses on the administration of the estate and the responsibilities carried by the administrator.

Standard Commission Rates and Percentages

Section 86 of the Probate and Administration Act does not guarantee a particular rate of commission. The Registrar may allow commission as a lump sum or percentage, with the following ranges serving only as a guide:

• 0.25% to 1.25% of the value of assets transferred in specie;
• 0.25% to 2.5% on income from capital realisations; and
• 1% to 5% on income collections.

The appropriate amount depends on the work performed, the responsibility involved and the circumstances of the deceased estate. These percentage ranges do not replace the Registrar’s assessment of what is just and reasonable.

Potential Reductions or Denials of Commission for Administrators

Disentitling Conduct & Breach of Trust

Commission is discretionary, so an administrator does not have a guaranteed entitlement to payment. As noted above, Section 86 of the Probate and Administration Act bars any allowance where an administrator, without good reason, fails to pass the accounts as required by the rules or a Court order.

The decision in Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC247 (‘Re Estate Gowing‘) indicates that commission may also be denied where conduct involves neglect, breach of trust or disregard of fiduciary obligations. 

In addition, section 86A of the Probate and Administration Act empowers the NSW Supreme Court, of its own motion or on the application of any person interested in the estate, to review any commission or other amount charged or proposed to be charged respecting the estate. If the Court considers the amount excessive, it may reduce it, notwithstanding any provision in the will authorising the charge.

Deductions for Non-Professional Work Charged by Professionals

The Registrar checks professional bills submitted in the accounts and may disallow charges for work that is executorial rather than professional. This includes work that forms part of the administrator’s ordinary responsibility in administering the deceased estate.

If estate funds paid a solicitor or another professional for non-professional executorial work, the administrator may be ordered to reimburse the estate for those amounts. Furthermore, the Registrar may also moderate the amount properly payable from the estate for professional work undertaken.

Case Study on Costs & Delays in Estate Administration

Background of the Estate of David Patrick Roche Frost

In Estate of David Patrick Roche Frost [2025] NSWSC994 (‘Estate of Frost‘), a beneficiary applied for orders:

• requiring the executor to verify, file and pass the deceased estate’s accounts; and
• requiring the executor to personally pay the legal costs of the application on an indemnity basis, alleging delays in the estate administration.

The executor later consented to filing and verifying the accounts. The estate involved disputed information concerning shares, insurance and other financial matters, with some delay arising from both the executor’s conduct and the beneficiary’s responses.

The Court Ruling on Indemnity Costs & Administrator Conduct

The Court found that the executor’s overall management of the estate was reasonable and attentive, despite some delays. The delays were not sufficiently serious or improper to justify requiring the executor to personally pay the beneficiary’s legal costs.

Applying the negative test, the Court considered whether the executor’s expenses were incurred unreasonably or improperly. The Court ordered that each party bear their costs, while also referring the accounts to the Registrar for certification under Part 78 Rule 84 of the NSW Supreme Court Rules.

Conclusion

An administrator who obtains letters of administration may seek commission under Section 86 of the Probate and Administration Act for the pains and trouble involved in estate administration. The claim remains discretionary, and accurate accounts, proper conduct and informed agreement from adult beneficiaries can affect whether a Court application is needed and what amount may be allowed.

If an estate administration involves an unresolved commission claim, contact LawBridge’s wills and estate planning lawyers. LawBridge can provide clear guidance on beneficiary consent, accounts and the steps required to pursue payment while protecting the estate’s remaining assets.

Frequently Asked Questions

When a person dies without a valid will in New South Wales, the Succession Act 2006 (NSW) (‘Succession Act‘) governs how their estate is divided among next of kin under the rules of intestacy. Beneficiaries who hold or are seeking Letters of Administration may prefer to alter the distribution rather than accept the statutory formula.

A Deed of Family Arrangement enables all entitled parties to agree to vary the distribution of an intestate deceased estate without resorting to litigation. This article sets out the legal requirements, taxation and duty consequences, and protections for the administrator, so families can make informed choices before the estate is distributed.

Interactive Tool: See If Your Family Can Use a Deed of Family Arrangement

The Purpose of a Deed of Family Arrangement for Beneficiaries & Family Members

Alteration of the Statutory Intestacy Formula

When a deceased person dies without a valid will, the rules of intestacy determine which family members are entitled to the estate and the share each beneficiary receives. However, those statutory entitlements may not reflect the family’s preferred distribution of the deceased estate.

A Deed of Family Arrangement is a legally binding agreement that allows the beneficiaries to record a different arrangement. The deed may vary the distribution of estate assets from the outcome produced by intestacy, such as where family members agree to divide the estate differently.

Resolution of Estate Disputes Without Court Proceedings

A formal family arrangement allows beneficiaries to address disagreements about the distribution of an estate through an agreed document. 

It can provide flexibility where the circumstances of the family have changed or where a beneficiary is dissatisfied with the proposed distribution.

A Deed of Family Arrangement may also record an enforceable settlement of an estate dispute, including a dispute about a will or a potential family provision claim. Reaching agreement can:

• avoid lengthy and expensive litigation;
• help preserve family relationships; and
• give the executor a clear basis for administering the estate.

Essential Requirements for a Valid Family Arrangement in NSW

Requirement for Unanimous Consent from All Entitled Parties

A Deed of Family Arrangement requires the consent and agreement of every party entitled to an inheritance under the will or the rules of intestacy. Each beneficiary must agree to the deed’s terms before it can vary the proposed distribution of the estate.

This includes every person whose entitlement may be affected, including a beneficiary who may receive a different share of the estate or agree to transfer part of their entitlement to another person. Without unanimous agreement, the deed cannot record a binding variation among all affected parties.

Provisions for Minors & Beneficiaries Lacking Mental Capacity

A person under 18 or a beneficiary who lacks capacity cannot enter into a Deed of Family Arrangement without the required approval. The arrangement may require an application to the Supreme Court of New South Wales before it can proceed.

Court approval is also relevant where a deed changes the entitlement of:

• a minor;
• an incapacitated beneficiary; or
• another person who cannot provide informed consent.

The court’s involvement protects the affected beneficiary’s interests before the estate distribution is altered.

The Necessity of Independent Legal Advice

Each party should obtain independent legal advice before signing a Deed of Family Arrangement. Separate advice allows every beneficiary to receive an objective explanation of:

• the deed’s legal merits;
• its proposed terms; and
• the possible effect on their share of the estate.

A wills and estate planning lawyer involved in drafting the deed can explain the proposed distribution and prepare the document accurately. Each affected beneficiary should have the opportunity to obtain advice from a separate lawyer before agreeing to vary the estate distribution.

Tax & Duty Consequences for Beneficiaries Who Alter an Intestate Estate

Transfer Duty on Variations Not in Conformity

Under Section 63 of the Duties Act 1997 (NSW) (‘Duties Act‘), the $100 applies to certain transfers of dutiable property from the legal personal representative of a deceased person to a beneficiary, including where the transfer is made under and in conformity with the trusts contained in the will or arising on intestacy.

A Deed of Family Arrangement that changes a beneficiary’s statutory entitlement means the transfer is not in conformity. Standard ad valorem transfer duty may apply to the portion received above the beneficiary’s original entitlement. 

Transactions involving a variation to the distribution under a will, including a transfer under a deed of family arrangement, must be lodged with Revenue NSW for assessment via eDuties rather than processed through Electronic Duties Returns (EDR).

Property Valuation & Surcharge Purchaser Duty

A professional property valuation report is required when a variation changes the share of property received by a beneficiary. Revenue NSW uses the valuation to calculate duty on the varied portion, with duty calculated by reference to the higher of the amount paid or the market value where applicable.

A foreign person is exempt from surcharge purchaser duty when property passes strictly in conformity with the deceased person’s will or intestacy laws. 

Surcharge purchaser duty may apply to the dutiable value of a residential property share acquired through a deed that changes the original entitlement.

Capital Gains Tax Implications for the Deceased Estate

Changing the distribution of a deceased estate may have Capital Gains Tax (CGT) consequences. Under the Australian Taxation Office’s guidance, How CGT applies to inherited assets, an asset may pass to a beneficiary under a deed of arrangement where:

• the deed settles a claim to participate in the deceased estate; and
• the only consideration is the variation or waiver of a claim to estate assets.

The deed should ordinarily be entered into before the legal personal representative completes the estate administration. Where these conditions are satisfied, the asset is treated as having passed to the beneficiary, allowing the legal personal representative to disregard any capital gain or capital loss arising from the transfer.

Protection Mechanisms for Administrators of a Deceased Estate

Inclusion of a Release & Indemnity Clause

A Deed of Family Arrangement should include a release and indemnity clause protecting the administrator from future lawsuits or claims about the distribution of the estate. The beneficiaries agree to:

• release the administrator from claims connected with the distribution; and
• indemnify the administrator against related liability.

This clause records the beneficiaries’ agreement about how the estate is to be distributed. It can give the administrator a clearer basis for completing estate administration after the deed has been signed.

Publication of a Notice of Intended Distribution

An administrator may publish a Notice of Intended Distribution through the NSW Online Registry before distributing any part of the estate. The notice gives creditors 30 days to notify the administrator of a claim.

Publication is not mandatory. However, the notice may provide protection from personal liability for unknown claims, subject to compliance with the relevant requirements, under the following provisions:

• Section 92 of the Probate and Administration Act 1898 (NSW); and
• Section 93 of the Succession Act.

Part 78 Rule 93(a) of the Supreme Court Rules 1970 (NSW) provides that a notice of intended distribution relating to the estate of a deceased person for which a grant of representation has been made or resealed by the Court must be published on the New South Wales Online Registry website.

Management of Creditors & Estate Debts

An administrator must call in the assets of the deceased person and pay the deceased’s debts before distributing the estate. This includes unpaid accounts and any required tax returns.

The administrator holds the estate as trustee for the beneficiaries until distribution. The administrator must:

• act in good faith;
• act with due care and diligence; and
• keep estate property separate from personal property.

Failure to administer the estate properly may result in personal liability to repay or compensate the estate.

Conclusion

A Deed of Family Arrangement can give beneficiaries a formal way to change how an intestate estate is shared when the statutory outcome does not reflect the family’s agreed position. Independent legal advice, transfer duty and capital gains tax consequences, creditor claims, estate debts and the administrator’s responsibilities should be considered before the estate is distributed.

With these issues in mind, contact LawBridge’s wills and estate planning lawyers to request a consultation about drafting or reviewing the arrangement. The team can provide practical legal guidance to help beneficiaries and administrators address the agreement, taxation issues and estate administration steps with greater clarity.

Frequently Asked Questions

When a person dies without a valid will in NSW, obtaining Letters of Administration gives an administrator the legal authority to manage and distribute the estate. This role increasingly involves identifying and securing digital assets such as cryptocurrency, online accounts, and intellectual property — holdings that Australian courts now recognise as property.

This article outlines the key duties of an administrator, from discovering digital wallets and preserving private keys to handling platform requests and managing capital gains tax obligations. It provides practical guidance for securely administering a digital legacy under NSW intestacy laws.

Interactive Tool: Check If You’re Ready to Handle the Estate’s Digital Assets

Device & Digital Wallet Discovery Methods

An administrator’s first task is to identify the deceased’s smartphones, digital accounts and cryptocurrency wallets. Crypto assets may be stored in:

• a software wallet, including one held through a trading platform; or
• a hardware wallet.

A hardware wallet stores private keys on a secure device that is not connected to the internet. Physical discovery is therefore essential because the wallet may not be identifiable through online account searches. 

Each wallet has a private key that authorises transactions, and losing that key usually means losing access to the cryptocurrency.

Identification of Online Businesses & Intellectual Property

The digital asset search should also cover:

• online businesses;
• domain names;
• cloud files; and
• related digital records.

These assets may contain financial value, business information or material needed to maintain the estate’s interests.

Administrators should record any copyright, trade marks and other intellectual property connected with the deceased or an online business. 

The search should also identify relevant accounts, renewal details and service arrangements so that domains, business operations and intellectual property are not overlooked during estate administration.

Device Access & Private Key Preservation for Executors

Solutions for Passcode & Biometric Lockouts

Apple iPhones are designed to prevent access without the correct passcode or biometric unlock. After death, Face ID or Touch ID may no longer provide access, leaving an executor unable to review:

• digital records;
• email accounts;
• password manager vaults; or
• authentication tools.

Apple requires a Legacy Contact or a court order before an administrator can obtain access to a locked device. Possession of the iPhone alone may not be enough to recover information held on it, including records relevant to the estate administration.

Protection of Hardware Wallets & Authentication Apps

A hardware wallet stores cryptocurrency private keys on a secure device that is not connected to the internet. This can make it harder for hackers to access the wallet, but the device and its access details still require careful protection during estate administration.

Each wallet uses a private key to authorise transactions on the blockchain network. If the private key is lost, the cryptocurrency is usually lost permanently because crypto systems have no central data bank.

Authentication apps should also be preserved because they may hold codes needed to access online accounts and cryptocurrency holdings.

Legal Frameworks & Platform Requests for Administrators

The Impact of Unclear Statutory Guidance in NSW

NSW does not have clear statutory guidance specifically governing access to a deceased person’s digital assets and records. Relevant areas may include:

• intellectual property;
• privacy;
• contract;
• crime;
• estate administration; and
• wills and succession law.

This creates uncertainty about access, control and inheritance.

Social Media Policies & Legacy Contact Procedures

Social media accounts may form part of an estate, but an administrator’s access can depend on the platform’s terms of service and internal procedures. 

The NSW Law Reform Commission identified these policies, together with privacy protections and jurisdictional issues, as matters relevant to any access scheme.

An administrator may need to provide evidence of the following before a platform considers a request:

• the deceased’s death;
• their legal authority; and
• their relationship to the estate.

Estate planning can also address these issues by:

• identifying digital accounts;
• recording access details; and
• appointing a digital executor.

However, a platform’s own procedure may still control whether an account is transferred, memorialised or closed.

Valuation, Capital Gains Tax & Documentation for Beneficiaries

Market Valuation Requirements for Crypto Assets

Crypto assets should be recorded at their market value in Australian dollars at the date of the deceased person’s death. This valuation supports probate reporting, estate administration and later tax calculations.

Administrators should keep records for each cryptocurrency and transaction, including:

• the asset’s value or cost;
• the date of acquisition; and
• costs incurred by the legal personal representative or beneficiary.

Each crypto asset is treated as a separate CGT asset. Accurate records can help establish the asset’s value and cost base when it is later transferred or disposed of.

Capital Gains Tax for Inherited Estates

A legal personal representative can disregard a capital gain or capital loss when a CGT asset owned by the deceased immediately before death passes to a beneficiary, including under the laws of intestacy. 

However, the beneficiary may face CGT if they later sell, exchange, gift or otherwise dispose of the inherited cryptocurrency.

CGT may apply at the deceased’s death when an asset passes to a foreign resident or a tax-advantaged entity, such as a charity, subject to the conditions described by the Australian Taxation Office.

When the legal personal representative sells an estate asset while winding up the estate, the resulting capital gain or loss is subject to the normal CGT rules.

Asset Transfer & Digital Legacy Distribution Rules

The Difference Between Asset Ownership & Digital Licences

An estate may contain both owned digital assets and digital services accessed under a licence or service agreement. Ownership may allow an asset to pass to a beneficiary, while a licence may only provide permission to use an account, platform or digital content.

The deceased’s terms of service may control whether access can be:

• transferred;
• continued; or
• closed.

Administrators should check the relevant agreement before treating an online account, digital content or other digital asset as transferable property.

Distribution Guidelines Under NSW Intestacy Rules

Digital assets form part of the estate where they are property owned by the deceased. When a person dies without a valid will, NSW intestacy rules determine which beneficiaries are entitled to receive the estate, including qualifying cryptocurrency and other transferable digital assets.

Before distribution, the administrator should:

• identify each asset;
• confirm its ownership;
• preserve access details; and
• record its value.

A cryptocurrency holding may be transferred to an entitled beneficiary or sold so its value can be shared as part of distributing the estate.

Conclusion

Managing a digital estate after Letters of Administration requires careful control of devices, wallets, private keys, online accounts and intellectual property. Accurate Australian-dollar valuations, transaction records and attention to capital gains tax support the administration and later distribution of cryptocurrency and other digital assets under NSW intestacy rules.

The next step is to contact LawBridge for a consultation about the estate. For practical legal guidance on digital asset management, cryptocurrency holdings and intellectual property, contact our wills and estate planning lawyers at LawBridge to help deal with the estate’s digital records and distribution responsibilities.

Frequently Asked Questions

Superannuation does not automatically form part of a deceased estate when a member dies. The super fund trustee decides who receives the death benefit payment, considering any existing nominations and identifying eligible dependants.

This article explains how death benefit claims are processed when no valid will exists, who qualifies as a beneficiary under superannuation law, and the steps executors and families must take to secure the benefit payment.

Interactive Tool: See If You Can Claim a Super Death Benefit

The Fate of a Super Death Benefit Without a Valid Will

The Role of Binding & Non-Binding Nominations

A superannuation death benefit does not automatically become part of the deceased estate. The super fund trustee first checks whether the deceased member made a valid death benefit nomination and considers the fund’s governing rules.

• A valid binding nomination requires the trustee to pay the benefit to the nominated eligible beneficiary or beneficiaries, subject to the nomination remaining valid.
• A non-binding nomination guides the trustee but does not require a particular outcome.

If there is no nomination, or a binding nomination is invalid, the trustee uses discretion to decide which eligible dependant or dependants should receive the benefit payment.

Payment to the Legal Personal Representative

The trustee may decide to pay the super death benefit to the deceased person’s legal personal representative. The legal personal representative is the executor of the will or the administrator of the deceased estate.

Payment to the legal personal representative places the death benefit into the deceased estate for distribution through the estate administration process, where advice from wills and estate planning lawyers at LawBridge may help. This may occur where:

• there is no valid binding nomination;
• the nomination directs payment to the estate; or
• the trustee considers payment to the legal personal representative appropriate under the fund’s governing rules.

Eligible Beneficiaries for Australian Families & Executors

Dependants Under Superannuation Law

Under the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SIS Act‘), a dependant who may receive a superannuation death benefit includes:

• the deceased member’s spouse or de facto spouse;
• a child of any age; or
• a person in an interdependency relationship with the deceased member at the time of death.

An interdependency relationship requires all the following:

• a close personal relationship;
• living together;
• financial support from one or both people; and
• domestic support and personal care from one or both people.

In addition, a super fund may also pay the benefit to the deceased person’s legal personal representative. 

A person who was financially dependent on the deceased at the time of death may qualify as a dependant for SIS purposes and, subject to the fund’s governing rules, may therefore be eligible to receive the death benefit.

Dependants Under Taxation Law

The tax law definition of a dependant differs from the definition used to determine who may receive a superannuation death benefit. For tax purposes, a dependant may include:

• a current or former spouse or de facto spouse;
• a child under 18 years old;
• a person financially dependent on the deceased; or
• a person in an interdependency relationship.

A child over 18 years old is generally treated as a dependant for tax purposes only if the child was financially dependent on the deceased at the time of death. 

This distinction affects the tax treatment of the benefit payment, including whether a lump sum death benefit is tax free or contains a taxable component.

Steps for Executors & Beneficiaries to Claim the Benefit Payment

How to Locate the Super Fund & Initiate the Claim

To locate the super fund, you can:

• Check the deceased person’s paperwork for superannuation statements, letters from the super fund, or payslips;
• Contact the deceased person’s employer, who may be able to confirm which super fund received contributions; and
• Notify the Australian Taxation Office (ATO), if you are the authorised legal personal representative (LPR), that you are managing the deceased estate and request the deceased estate tax and super information package. The ATO may provide information it holds about the deceased person’s superannuation accounts, including lost or ATO-held super, to the authorised LPR or an appropriately appointed representative.

Once the super fund is identified, contact it to notify the fund of the member’s death and begin the superannuation death benefit claim. 

The claimant or legal personal representative can ask for the required forms and documents, expected timeframes, and details of how the benefit payment will be assessed.

How to Provide Required Documentation & Proof of Identity

The super fund may request a death certificate or other accepted proof of death, proof of identity, and evidence of the claimant’s relationship with the deceased person, such as a marriage certificate. 

A legal personal representative may also need to provide probate or letters of administration if the death benefit is to be paid to the deceased estate.

When managing the documentation process:

• Keep copies of every form and document, together with submission dates, contact names, and reference numbers.
• Before sending documents, ask whether the super fund requires originals or certified copies.
• If a document is not immediately available, ask what alternative evidence the fund accepts and when the remaining documents can be supplied.

Fund Assessment Processes & Dispute Resolution for Australian Families

The Claim Staking Process & Beneficiary Objections

Claim staking is a discretionary process that allows a super fund trustee to notify potential beneficiaries of a proposed death benefit payment. 

The notice explains who the trustee proposes to pay and the proposed amounts, giving each relevant beneficiary an opportunity to object.

A claimant usually has 28 days to object. If an objection is received, the trustee must:

• notify the other claimants;
• consider any further information; and
• review the proposed decision.

However, Australian Securities and Investments Commission (ASIC)’s review found that claim staking added about 95 days to the median claims handling time across the reviewed trustees. As a result, trustees may waive the process for lower-risk claims.

How to Escalate Disputes to the Australian Financial Complaints Authority

A disagreement about a death benefit payment starts through the fund’s internal dispute resolution (IDR) process. The trustee must then provide a written IDR response explaining the outcome and the 28-day timeframe for lodging a complaint with the Australian Financial Complaints Authority (AFCA).

AFCA cannot consider a death benefit payment complaint until the IDR process has started and the claimant has received a response. 

Tax Implications for Beneficiaries & Deceased Estates

Tax-Free Payments for Dependants

A lump sum death benefit paid directly to a dependant under taxation law is entirely tax-free. This applies whether the benefit includes a taxed element, an untaxed element, or both.

Similarly, a lump sum death benefit paid to the trustee of a deceased estate is also tax-free when all beneficiaries who benefit from that payment are dependants of the deceased. 

Ultimately, the tax treatment depends on the status of the people who ultimately benefit from the payment.

Taxable Components for Non-Dependants

A lump sum superannuation death benefit paid in respect of a non-dependant may comprise tax-free and taxable components. The tax-free component is not subject to tax.

The taxable component may include a taxed element and/or an untaxed element, and the applicable tax treatment depends on whether the benefit is paid directly to the non-dependant individual or to the deceased’s legal personal representative (LPR) for distribution through the estate.

Where the benefit is paid directly to a non-dependant individual, the taxable component is generally subject to tax at a maximum rate of:

• 17% on the taxed element, comprising 15% tax plus the 2% Medicare levy; and
• 32% on any untaxed element, comprising 30% tax plus the 2% Medicare levy.

Where the benefit is instead paid to the LPR or trustee of the deceased estate, and is attributable to non-dependant beneficiaries, the taxable component is generally taxed at:

• 15% on the taxed element; and
• 30% on any untaxed element.

The Medicare levy does not apply to the estate in this context. Accordingly, the 15% and 30% rates should not be treated as the final effective rates where a death benefit is paid directly to an Australian-resident non-dependant individual.

A non-dependant must receive a superannuation death benefit as a lump sum; they cannot receive it as a death benefit income stream. Where an estate benefits both dependants and non-dependants, the taxable components are allocated proportionately according to the extent to which each beneficiary benefits from the death benefit.

Recourse for Australian Families Against Superannuation Delays

Common Causes of Trustee Delays

A death benefit claim may take longer when:

• documents are missing or incomplete;
• multiple people claim the benefit;
• the super fund must identify potential beneficiaries; or
• probate or letters of administration are required before payment to the deceased estate.

ASIC Report 806 identified other causes of delay, including:

• risk-averse procedures;
• unclear claim processes;
• poor record-keeping;
• inadequate staff training; and
• weak coordination with service providers.

Support for Claimants Experiencing Financial Hardship

Under Regulation 6.21(2)(a) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘SIS Regulations‘), a trustee may cash a deceased member’s benefits as an interim lump sum followed by a final lump sum. The regulation permits that form of payment; it does not make financial hardship a statutory condition for an interim payment.

In practice, subject to the fund’s trust deed, governing rules and the trustee’s assessment of the relevant payment risks, an interim payment may be made to assist an eligible beneficiary facing urgent financial need.

ASIC Report 806 observed that many trustees had procedures to expedite certain low-risk death-benefit claims involving financial hardship and, in some circumstances, to release part of the account balance as an interim payment. ASIC noted, for example, that this could occur where the claimant was the nominated beneficiary and had an urgent monetary need.

An interim payment may assist with:

• funeral, burial or cremation expenses;
• rent;
• mortgage payments; and
• other basic costs.

The availability and amount of an interim payment are not prescribed by Regulation 6.21(2)(a) of the SIS Regulations They depend on the fund’s governing rules, the terms of any binding death-benefit nomination, the identity and entitlement of the claimant, competing claims, the amount of the benefit then ascertainable, and the trustee’s risk assessment and procedures.

Conclusion

A superannuation death benefit does not automatically form part of a deceased estate, as the super fund trustee must assess nominations, eligible beneficiaries and the fund’s governing rules. Claimants and legal personal representatives should provide the required documents, monitor the claim, address delays promptly and consider the tax treatment of any benefit payment.

After a death benefit claim begins, contact LawBridge to request a consultation if legal guidance is needed. Our wills and estate planning lawyers at LawBridge provide clear, practical support to help families and estate representatives manage beneficiary issues, documentation requirements and disputes involving superannuation death benefits.

Frequently Asked Questions

When a sole director and sole shareholder of a proprietary company dies without leaving a valid will, the company is left without a director authorised to make management decisions. The business continues to exist as a separate legal entity, but bank accounts may be frozen and the company may be unable to trade until a replacement director is appointed.

This article explains how family members can apply to the Supreme Court of NSW for Letters of Administration and use Section 201F of the Corporations Act 2001 (Cth) (“Corporations Act”) to appoint a new director. It also outlines the practical steps needed to keep the company running while the estate is administered.

Interactive Tool: Check Your Company’s Next Legal Step After a Director Dies

Immediate Consequences for the Company & Shareholders

The Separation of Directorship & Share Ownership

Directorship and share ownership are separate legal roles. A director of a company holds a personal office that ends automatically when the director dies. The role does not pass to an executor, beneficiary or family member.

Shares are property and form part of the deceased’s estate. Under Section 1072A of the Corporations Act, shares can pass by transmission to the deceased’s legal personal representative once probate or letters of administration have been granted. The estate may later:

• transfer the shares to a beneficiary;
• sell them; or
• retain them while the estate is administered.

Operational Paralysis & Frozen Bank Accounts

A company remains a separate legal entity when its sole director dies, but it may be unable to make management decisions without an authorised person, so businesses may need advice from commercial and business lawyers on company governance and continuity. A proprietary company with a sole director and sole shareholder can be left without anyone able to:

• sign contracts;
• pay suppliers; or
• continue to manage the company.

Banks may freeze an account or decline further instructions where the deceased was the sole authorised signatory. This can interrupt payroll, supplier payments and other business obligations.

However, existing authorised signatories may still operate the account, depending on the bank mandate and its response to the death.

The Legal Process for Family Members & Executors

Application for Letters of Administration in NSW

Without a Will, an eligible relative will usually need to apply to the Supreme Court of New South Wales for Letters of Administration, often with advice from wills and estate planning lawyers on estate administration. 

The grant appoints an administrator to collect assets, pay debts and administer the deceased estate. That authority is also needed before the administrator can take the steps required to manage the company.

The Supreme Court of NSW states that an application should generally be filed within six months from the date of death. Where a first application for probate or letters of administration is filed later than six months after the death, the supporting affidavit must include an explanation for the delay, either within the affidavit itself or in a separate Affidavit of Delay, pursuant to Part 78, rule 16 of the Supreme Court Rules 1970 (NSW) (NSW Supreme Court Rules).

The process may take weeks or months, leaving the company without someone authorised to make management decisions during that period.

Appointment of a Replacement Director

Under Section 201F of the Corporations Act, the personal representative appointed to administer the estate of a person who was the sole director and sole shareholder of a proprietary company may appoint a replacement director. 

The personal representative may appoint themselves or another eligible person, and the appointed person holds office as if appointed through the usual process.

In this sense, the appointment can occur only once the personal representative has been formally appointed through probate or Letters of Administration. The replacement director must consent to the appointment and must be legally eligible to act. 

Once appointed, the new director can manage the company and exercise the director’s powers under the Corporations Act.

Transmission of Shares & Corporate Governance

Transfer of Shares to the Legal Personal Representative

Shares owned by a deceased shareholder form part of the deceased estate. As noted above, under Section 1072A of the Corporations Act, the shares pass by transmission to the deceased’s legal personal representative.

The shares generally remain registered in the deceased’s name until the legal personal representative provides evidence of their appointment and requests registration. 

Once registered, the legal personal representative may hold the shares for the estate before they are sold or transferred to beneficiaries, subject to the company constitution and any applicable shareholders agreement.

Updates to ASIC Records & The Company Register

The company must maintain a register of members and update it to reflect any valid transmission or transfer of the deceased member’s shares, including the registration of the legal personal representative where applicable and any subsequent change in ownership.

Section 168 of the Corporations Act requires a company to set up and maintain a register of members. Section 169 of the Corporations Act specifies the information that must be recorded, including each member’s name, address, date of entry, and, for a company with share capital, details of the shares held and related share information.

A proprietary company must notify the Australian Securities and Investments Commission (ASIC) of relevant changes, including:

• changes to its member register, pursuant to sections 178A and 178D of the Corporations Act, generally within 28 days after the company adds or alters the relevant particulars in the register; and
• the appointment or cessation of a director or company secretary, or a change to their personal details, pursuant to section 205B of the Corporations Act, generally within 28 days after the relevant event or change.

In summary, if a director dies, the company must notify ASIC of the director’s cessation within 28 days after the cessation, which will ordinarily be the date of death. If a replacement director is appointed, the company must separately notify ASIC of that appointment within 28 days after the effective date of appointment.

Complications Involving Trusts & Personal Guarantees

Impact on Corporate Trustees & Family Trusts

A company acting as trustee of a family trust may become unable to operate effectively when its sole director dies. Until an authorised person can act for the corporate trustee, the trust may be unable to:

• make distributions to beneficiaries;
• enter transactions; or
• manage trust property.

The trust deed should be reviewed for provisions dealing with the appointment and removal of trustees and the succession of the appointor. An alternate appointor or successor may be identified in the deed.

If the company cannot act as trustee, the trust’s administration may be disrupted even though the company itself remains a separate legal entity.

The Continuation of Personal Guarantees & Debts

Personal guarantees signed by the deceased director for company debts do not end when the director dies. Guarantees may cover obligations such as:

• commercial leases;
• bank facilities; and
• trade accounts.

Creditors may claim against the deceased estate if the company does not meet the guaranteed obligation. The estate should identify all guarantees, loans and security arrangements before assets are distributed.

A director may also have personal exposure for liabilities incurred by a company acting as trustee under Section 197 of the Corporations Act where the statutory conditions apply.

Proactive Steps for Business Owners & Company Directors

Creation of a Valid Will & Succession Plan

A professionally drafted Will should:

• identify the company shares;
• name a suitable executor; and
• state how the estate should be administered.

This gives the executor authority to manage the estate and, where relevant, take the steps needed to appoint a new director to the company.

A written business succession plan should also address whether the business will:

• continue;
• be sold; or
• be transferred to beneficiaries.

It should also identify key company records, banking details, contracts and other information needed to keep the company running if the sole director dies without leaving a valid Will.

Review of the Company Constitution & Shareholders Agreements

The company constitution should be reviewed for provisions dealing with the following:

• the death of a shareholder;
• director appointments;
• share transfers;
• voting rights; and
• pre-emption requirements.

A current review can identify rules that may affect how shares are transferred or whether a beneficiary can participate in company decisions.

A shareholders agreement may set out:

• a buy/sell process;
• a valuation method; and
• funding arrangements for a shareholding transition.

Business owners should consider whether the agreement aligns with the Will and constitution, and whether shares are transferred to beneficiaries or offered to existing shareholders after the estate is administered.

Conclusion

When a sole director and sole shareholder dies without a will, the company remains a separate legal entity, but its operations may stall until an authorised replacement director is appointed. Letters of Administration, transmission of shares, ASIC updates and reviews of guarantees, trusts and company documents are central to administering the estate and protecting the business.

The appropriate next step is to contact LawBridge to request a consultation about the estate and company structure. You can contact LawBridge’s business lawyers for advice on business succession to keep the company’s affairs organised while the estate is administered.

Frequently Asked Questions

When a person dies and letters of administration have been issued in another Australian state or territory, the administrator may need to have that grant resealed by the Supreme Court of NSW to manage assets located in New South Wales. This process is authorised under Section 107 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘).

This article explains the reseal process for interstate letters of administration, including the jurisdictions recognised, the documents required, and the steps for lodging an application with the Supreme Court of NSW.

The Need for a Reseal in NSW

Identification of Assets That Require a Reseal

A reseal is required when the deceased owned real estate in New South Wales and the executor or administrator holds a grant issued by an Australian court or an eligible overseas court. 

Under Section 107 of the Probate and Administration Act, a resealed grant has the same force and operation in New South Wales as the original grant.

Other NSW assets may not always require a reseal or fresh grant. Banks and other asset holders may release funds after receiving a declaration of entitlement or indemnity.

Life insurance proceeds and superannuation death benefits usually fall outside the estate, although the relevant trustee may require a grant or reseal before releasing the funds.

Differences Between Probate and Letters of Administration

Each form of grant gives the executor or administrator authority to deal with estate assets. The three main types are:

• Probate: granted where a valid will appoints an executor.
• Letters of administration: apply where the deceased died without a will.
• Letters of administration with the will annexed: apply where a will exists but probate is not granted to a named executor.

Where the original grant was probate or administration with the will annexed, the issuing court retains the original will. The NSW application must then rely on a copy of the will contained in the grant. 

A reseal of probate or reseal of another grant may allow the interstate executor or administrator to deal with NSW assets without applying for an entirely new grant.

Eligible Jurisdictions for a NSW Reseal

Recognised Australian States & Territories

Under Section 107 of the Probate and Administration Act, the Supreme Court of NSW may reseal a grant issued by an Australian state or territory court. The recognised Australian states and territories are:

• Victoria
• Queensland
• South Australia
• Western Australia
• Tasmania
• Northern Territory
• Australian Capital Territory

A grant of probate or letters of administration issued by a court in one of these jurisdictions may support an application for a reseal where the estate includes assets in NSW.

Commonwealth Realm Countries

The Supreme Court of NSW may also reseal grants from countries classified as Commonwealth Realm countries, where the Queen is, or was when the grant was made, the Head of State. The listed countries include:

• United Kingdom, including England, Scotland, Wales and Northern Ireland
• New Zealand
• Papua New Guinea
• Solomon Islands

A foreign grant from a country outside this recognised group cannot be resealed through this process. The executor or administrator may instead need to apply for a fresh grant in NSW, depending on the circumstances of the estate and the grant issued overseas.

Current Application Fees 

Supreme Court of NSW Application Fees

The current filing fee for an uncontested probate or reseal application depends on the sworn gross value of the estate. The Supreme Court of NSW filing fees applying from 1 July 2026 are:

• Under $100,000: no fee
• $100,000 to under $250,000: $960
• $250,000 to under $500,000: $1,303
• $500,000 to under $1,000,000: $1,999
• $1,000,000 to under $2,000,000: $2,663
• $2,000,000 to under $5,000,000: $4,439
• $5,000,000 or more: $7,399

The Step by Step Reseal Application Process

Publication of the Notice of Intended Application

Under Sections 42 and 109 of the Probate and Administration Act, at least 14 days’ notice must be published before a summons for a reseal is filed. The notice of intended application is published through the NSW Online Registry, as required by Part 78 of the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules‘).

The notice serves several purposes, including:

• giving creditors an opportunity to submit claims against the estate;
• alerting relatives who may seek a family provision order; and
• notifying anyone who may challenge the validity of the will or identify a later will.

Lodgement of the Application & Responses to Requisitions

An uncontested reseal application is made online through the Probate Service. After the documents have been signed, the applicant must upload the following and pay the applicable filing fee:

• the summons;
• the reseal form;
• the inventory of property;
• the affidavit;
• the original grant or exemplification; and
• a certified copy of the grant.

An incomplete or incorrect application may result in requisitions from the Court by email. The applicant must answer each requisition by re-filing a form or submitting a separate affidavit.

The Court will not issue the reseal until the requisition has been answered. The application may be dismissed if no response is filed or additional time is not requested.

Situations That Require a Fresh NSW Grant

Ineligible Overseas Grants

The Supreme Court of NSW cannot reseal every foreign grant. As discussed above, under Section 107 of the Probate and Administration Act, resealing is limited to grants from Australian courts and certain Commonwealth Realm countries.

Grants made in the following countries cannot be resealed in NSW:

• Malta
• South Africa
• Pakistan
• India
• Sri Lanka
• Fiji
• Hong Kong
• Republic of Ireland

Where an overseas grant is ineligible, the executor or administrator may need to apply for a fresh grant in NSW. The type of new grant depends on the original grant and the deceased’s circumstances:

• A foreign grant of probate may support an application for a fresh grant of probate based on a copy of the will.
• A foreign grant of administration with the will annexed may require probate, or administration with the will annexed, of a copy of the will.
• If the deceased died without a will, the applicant may need a fresh grant of administration.

Informal Administration as an Alternative

A reseal or fresh grant may not be required for every NSW asset. Depending on the asset, its value and the requirements of the asset holder, a bank or another institution may release funds after the executor or administrator signs a declaration of entitlement or an indemnity protecting the asset holder against a later claim.

Each asset holder sets its requirements. Real estate held solely by the deceased or as a tenant in common requires a grant, while a death certificate may be sufficient to transfer real estate held in joint tenancy to the surviving joint tenant.

Wills and estate planning lawyers can assist with assessing whether informal estate administration, a reseal or a fresh grant is appropriate.

Conclusion

An interstate grant may need a reseal before an executor or administrator can deal with real estate and other assets in NSW, while some asset holders may accept a declaration, indemnity or death certificate instead. Under Section 107 of the Probate and Administration Act, the application depends on an eligible jurisdiction, the correct original grant or exemplification, certified documents, online notice and responses to any requisitions.

With the right documents prepared, LawBridge can assess whether a reseal, fresh grant or informal estate administration is appropriate. Contact our wills and estate planning lawyers at LawBridge for practical guidance on preparing the application and dealing with estate assets in New South Wales.

Frequently Asked Questions

A missing will after death triggers a legal presumption that the deceased revoked it. Without the original document, beneficiaries and next of kin may need to apply for letters of administration in the Supreme Court of NSW, leading to estate distribution under intestacy rules.

Conducting a thorough search before applying can prevent unnecessary costs, delays, and family disputes. The practical steps and legal pathways available help prospective administrators secure a grant of administration in New South Wales.

Interactive Tool: See If You Qualify for Letters of Administration in NSW

Legal Risks of a Missing Will for Prospective Estate Administrators in NSW

The Presumption of Revocation

When the deceased last held the original will and it cannot be found after death, the court may presume that the deceased destroyed it intending to revoke it. This is known as the presumption of revocation.

The presumption does not apply automatically. Evidence may displace it if it shows that the deceased continued to regard the will as operative. The following evidence may all assist the court:

• statements about a current will;
• communications with a solicitor; and
• evidence about how the document was stored.

A thorough search is important because the outcome may affect whether the estate is dealt with under the will or according to intestacy, in which case it may be helpful to get advice from our wills and estate planning lawyers on missing-will and intestacy issues.

Case Study of Jaksic-Repac v Dundjerski

The 2 December 2025 New South Wales Court of Appeal decision in Jaksic-Repac v Dundjerski [2025] NSWCA 256 (‘the Jaksic-Repac v Dundjerski case’) concerned a $24 million estate and a missing original will. The court found that the presumption of revocation did not arise because the evidence did not establish that the deceased had possessed the original will after signing it.

The court also found that the presumption would have been rebutted by evidence of the deceased’s continuing intention for the will to operate. The deceased had sent a copy to a beneficiary and told her solicitor that she had a current will.

The case shows why evidence about possession, communications and intention can affect the administration of an estate.

Financial & Administrative Consequences

A missing will can cause the estate to be distributed under intestacy laws, which may produce a different outcome from the deceased’s intended plan. The uncertainty can lead to:

• disputes between beneficiaries;
• contested probate proceedings; and
• delays in estate administration.

Executors may face uncertainty about their authority and additional legal obligations while the court determines which document, if any, should govern the estate.

In addition, legal proceedings, court fees and administration costs can reduce the estate available to distribute. Disputes may also place strain on family relationships and delay payments to beneficiaries.

Statutory Rights of Family Members & Next-of-Kin to Inspect a Will

Eligible Persons Under the Succession Act

Section 54(2) of the Succession Act 2006 (NSW) (‘Succession Act‘) identifies the people who may inspect a deceased person’s will or obtain a copy. 

A person with possession or control of the will must allow access to an eligible person, which may include:

• anyone named or referred to in the current or an earlier will;
• the surviving spouse, de facto partner, descendant, parent or guardian of the deceased;
• a person entitled to a share of the estate under intestacy;
• a parent or guardian of a minor referred to in the will or entitled under intestacy;
• a person, including a creditor, with a claim against the estate;
• a person managing the estate under the NSW Trustee and Guardian Act 2009 (NSW) (‘NSW Trustee and Guardian Act‘); or
• an attorney appointed under an enduring power of attorney.

Once the Supreme Court of NSW grants probate, Section 30 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) also permits the will to be inspected under the Court’s control.

Benefits of Document Inspection

Inspecting the will can show whether a person has been included or excluded from the deceased person’s estate. A named beneficiary can also assess whether the provision made under the will appears adequate.

Access may help an eligible person consider whether to challenge the will or make a claim against the estate. 

A person seeking a copy may lodge a request with the Probate Registry of the Supreme Court of New South Wales, although the copy may be supplied at that person’s expense.

Practical Search Steps for Prospective Estate Administrators in NSW

Search Personal Possessions & Digital Files

Begin by checking the deceased’s personal possessions for the original will and any correspondence about its preparation or storage. Relevant locations may include:

• filing cabinets;
• desk drawers;
• home safes;
• safe deposit boxes; and
• locked storage areas.

Email accounts, computers and cloud storage may also contain a digital copy of the will or messages between the deceased and a solicitor. 

Keep records of the locations searched and any documents or correspondence found, as these may assist with the estate administration process before someone needs to apply for letters of administration.

Contact Banks & Secure Storage Providers

Banks may hold a will in a safe deposit box or another secure storage facility. Contact each financial institution connected with the deceased to ask whether a box or document storage service was used.

Access to a safe deposit box will require a certified copy of the death certificate and identification. Bank staff can explain their requirements for checking the box and releasing documents connected with the deceased’s estate.

Consult Solicitors & the NSW Trustee & Guardian

A solicitor who prepared the will may hold the original document in secure storage. Contact the deceased’s solicitor directly, or make enquiries with local law firms in the area where the deceased lived, as firms may hold wills for clients.

The NSW Trustee and Guardian also provides a will storage service. An enquiry can be made using details such as the deceased’s name, date of birth and death certificate to check whether the will is held in its records.

Options for Family Members When the Original Will Remains Missing

The Rules of Intestacy

When a will cannot be found after all search steps have been completed, the deceased may be treated as having died intestate. The estate is then managed and distributed according to the rules of intestacy in Chapter 4 of the Succession Act.

The statutory order generally gives priority to:

• Spouse or de facto spouse;
• Spouse or de facto spouse together with eligible children;
• Children, including the issue of a deceased child; and
• Parents, siblings, grandparents, and eligible aunts or uncles.

Each category must be exhausted before the next category is considered. Only a person entitled to all or a share of the estate will generally be eligible to apply for letters of administration.

The Role of Letters of Administration

A grant of Letters of Administration is a legal document issued by the Supreme Court of New South Wales. It appoints an administrator to manage the deceased estate where the deceased died without leaving a will.

The administrator may use the grant to:

• Collect the deceased’s assets;
• Pay debts owed by the estate; and
• Distribute the remaining assets to the proper beneficiaries.

A grant may not be needed for every asset. Some asset holders may release modest amounts after the next of kin proves their entitlement. 

Real estate held solely by the deceased, or as a tenant in common, requires a grant to deal with that property.

Reliance on a Copy of the Will

A photocopy may support an application for probate when the original will cannot be located. The court may accept the copy if sufficient evidence indicates that the deceased did not destroy the original intending to revoke it.

Essential Steps to Apply for Letters of Administration in NSW

Time Limits & Affidavits of Delay

Under Part 78 Rule 16 of the Supreme Court Rules 1970 (NSW) (‘Supreme Court Rules‘), an application for a grant of administration should be filed within six months from the deceased’s date of death. 

An application filed after that period must include an explanation for the delay. The explanation may be included in the administrator’s affidavit or provided in a separate affidavit of delay. 

Publication of the Notice of Intended Application

A notice of intended application must be published through the NSW Online Registry before the summons for letters of administration is filed, and Section 42 and Section 109 of the Probate and Administration Act require at least 14 days notice before the summons is filed.

Part 78 Rule 3 and Rule 4 of the Supreme Court Rules identify the NSW Online Registry as the valid publication method. The notice uses the approved UCPR Form 116 and gives relevant parties an opportunity to respond, including:

• Creditors who may have a claim against the estate
• Relatives who may make a family provision claim
• People who may challenge the validity of a will
• People who know of a later or alternate will

The applicant should search the public probate notices before publication to check for a competing or duplicate application.

Court Requisitions & Responses

The Supreme Court of New South Wales may issue requisitions by email if an application is incomplete or contains incorrect information, and the applicant must respond by re-filing a form or lodging a separate affidavit addressing the identified problem.

Letters of administration will not be granted until the requisition has been answered; the court may issue further requisitions if the response does not resolve the issue, and an application may be dismissed if the applicant fails to respond or does not request additional time.

Conclusion

A careful search for the original will can clarify whether the estate should proceed through probate, administration with the will annexed, or intestacy. Keeping evidence of enquiries and meeting the Supreme Court of NSW procedure can reduce delay, disputes and unnecessary estate costs.

With these steps in mind, contact our wills and estate lawyers at LawBridge to discuss the estate’s circumstances and the appropriate court process. Law Bridge’s lawyers provide practical legal guidance to help administrators assess the available evidence, prepare for estate administration and address issues that may arise before seeking a grant.

Frequently Asked Questions

When a person dies without a valid will, their estate passes under intestacy laws. In New South Wales, the next of kin must apply for letters of administration through the Supreme Court of NSW to manage and distribute the deceased’s assets.

Intellectual property and digital assets are easy to overlook in a deceased estate. This guide explains what an administrator must do to identify, protect, and transfer these assets.

Interactive Tool: Check Your Risk With Estate IP & Digital Assets

Categories of IP & Digital Assets in an Intestate Estate

Traditional IP Assets

Traditional intellectual property may form part of an estate even when it has no immediate financial return. It can include:

• registered trade marks;
• patents for new devices, substances, methods or processes; and
• copyright in literary, artistic, musical or dramatic works.

Moral rights also relate to a deceased person’s creative works. Unfinished or unpublished creations may still be assets for an administrator to identify before the estate is dealt with under intestacy arrangements.

Emerging Digital Assets & Cryptocurrencies

Digital assets may include:

• cryptocurrencies;
• non-fungible tokens;
• email accounts;
• social media profiles;
• online content; and
• intellectual property stored online.

These assets may carry financial, sentimental, reputational or commercial value, including value connected with personal branding and commercial goodwill.

Section 46 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) includes legal rights and other less tangible interests within personal estate. 

An administrator should therefore consider digital accounts and online holdings when identifying the assets of the estate, even where the relevant platform grants only a licence to use the account rather than ownership of the underlying service.

Duties of an Administrator for IP Assets

Access Security & Asset Valuation

An administrator must identify and protect all intellectual property and digital assets forming part of the deceased estate, and may benefit from advice from wills and estate lawyers assisting with estate administration. This includes locating:

• passwords;
• login details;
• hardware wallets;
• private keys; and
• other access information needed to retrieve or manage online assets.

Without these details, cryptocurrency and digitally stored intellectual property may remain inaccessible.

Proper valuation is also required where an asset may have financial value. Intangible assets, including intellectual property and cryptocurrency, can be difficult to value because their worth may be uncertain or volatile. 

An administrator should obtain valuations and opinions from suitably qualified advisers before deciding whether an asset should be retained, sold or otherwise dealt with.

Prevention of Lapsing & Non-Use Vulnerabilities

An administrator must monitor deadlines that preserve registered intellectual property rights. These obligations include:

• registered trade marks require renewal every 10 years under Section 72(3) of the Trade Marks Act 1995 (Cth) (‘Trade Marks Act‘); and
• standard patents require annual renewal fees from the fourth anniversary of filing under Section 142 of the Patents Act 1990 (Cth) (‘Patents Act‘).

A renewal may be possible within six months after the renewal date, subject to a late fee, under Section 79 of the Trade Marks Act and Regulation 13.3(1A) of the Patents Regulations 1991 (Cth) (‘Patents Regulations‘). 

Registered trade marks also face removal for non-use in Australia for a continuous period of three years under Section 92(4)(b) of the Trade Marks Act; controlled use through trading activity or licensing may help preserve the mark during estate administration.

Copyright & Moral Rights

Copyright in most literary, artistic, musical and dramatic works usually continues for 70 years after the author’s death. Copyright may also cover:

• sound recordings;
• films;
• broadcasts; and
• published editions.

Ownership of a physical item, such as an original manuscript, does not automatically include the copyright in the work.

An administrator must review the deceased person’s royalty arrangements, copyright licences and related contracts. These agreements do not automatically end when the author dies, and the estate may remain bound by their terms.

Under Part IX of the Copyright Act 1968 (Cth) (‘Copyright Act‘), moral rights include:

• attribution;
• protection against false attribution; and
• integrity of the work.

Moral rights cannot be sold or transferred, but an executor or expressly appointed person may exercise and enforce them on behalf of the deceased author.

Social Media & Online Accounts

Social media profiles, email accounts and other online accounts are frequently controlled by the platform’s terms of service rather than succession law. 

Those terms commonly provide a non-transferable personal licence, meaning an administrator does not automatically obtain a legal right to access or control the account after the account holder’s death.

Platform options may be limited to memorialisation or permanent deletion. Facebook allows a designated Legacy Contact to memorialise an account, while Instagram also permits memorialisation. 

Ongoing management, monetisation or post-death use may not be permitted, which can affect an account’s personal, reputational or commercial value.

Transfer & Assignment of IP Ownership

Fragmentation Risks in Intestacy

Intestacy rules can divide an estate between a spouse, de facto partner, children and other relatives. When intellectual property passes to several beneficiaries, ownership may become fragmented rather than remaining with one person who can manage or commercialise it.

Multiple beneficiaries may disagree about whether to license, sell, enforce or continue using the IP. A beneficiary operating a business may depend on the IP, while other beneficiaries may have different interests or no involvement with the asset. Without agreement, the IP may be underused or become the subject of litigation.

The Process for Trademark & Patent Assignment

An IP assignment begins with a contract agreement between the current owner, known as the assignor, and the proposed new owner, known as the assignee. The agreement should state that ownership is transferred and identify whether the assignment is full or partial. Each party must sign through an authorised person.

After the agreement is completed, the ownership record should be updated with IP Australia:

• A trade mark assignment requires an approved request form and supporting evidence, including the assignment date, party details, trade mark numbers and signatures.
• A patent or patent application transferred to a new owner requires the Request to amend ownership details for an application or patent form.

The transfer occurs through the agreement, while the request records the change on the relevant register.

Conclusion

An intestate estate may include valuable intellectual property, digital accounts, cryptocurrencies and unfinished creative work, all of which require careful identification, protection, valuation and transfer. An administrator seeking a grant of letters of administration through the Supreme Court of NSW must also consider access issues, ownership records, renewal obligations and the risk of disputes between beneficiaries.

For estate administration involving complex IP and digital assets, contact LawBridge’s wills and estate lawyers for complex estate administration. Contact Law Bridge to discuss the estate, obtain specialist legal advice and plan the steps needed to administer and distribute the assets of the deceased with greater clarity.

Frequently Asked Questions

When a deceased estate in Australia is administered solely by a non-resident executor or administrator, the estate’s tax treatment changes significantly. The estate becomes a non-resident trust for tax purposes, losing access to the tax-free threshold and other concessions available to Australian resident estates.

This classification triggers capital gains tax (CGT) liabilities, foreign resident capital gains withholding on property sales, and higher income tax rates. This article explains the key tax implications and practical strategies for families managing cross-border estate administration.

Interactive Tool: Check If Your Estate Faces Higher Tax & Withholding Risks

Tax Residency Rules for a Deceased Estate

Criteria for a Resident Trust

A deceased estate is treated as a trust for Australian tax purposes, with the legal personal representative acting as trustee. Under Section 95(2) of the Income Tax Assessment Act 1936 (Cth) (‘ITAA 1936‘), the estate is a resident trust estate if either:

• at least one trustee is an Australian resident at any time during the relevant income year; or
• its central management and control is in Australia during that year.

The Australian Taxation Office (ATO) may require evidence showing that high-level decisions about the estate administration were made in Australia. This issue can arise where an executor, beneficiary or estate asset is located overseas.

Classification as a Non-Resident Trust

An estate is treated as a non-resident trust estate for tax purposes where the grant of administration is made solely to an executor or administrator who is not an Australian resident for tax purposes. The same outcome may arise where there are no Australian resident executors.

Section 6(1) of the ITAA 1936 defines ‘resident’ and includes:

• the ordinary concepts test;
• the domicile test; and
• the 183-day test.

The deceased person’s Australian residency or the location of the estate assets does not, by itself, prevent the estate from being classified as non-resident when the sole executor is a non-resident.

Tax Consequences for Non-Resident Administrators

Loss of the Tax-Free Threshold

A deceased estate with a non-resident administrator does not receive the $18,200 tax-free threshold available to resident estates for the first three years after death. As a result, tax may apply from the first dollar of taxable estate income, increasing the estate’s tax liability during estate administration.

The threshold applies to resident estates, while a non-resident estate may be taxed under the non-resident tax regime. This treatment can affect the amount available for distribution to each beneficiary.

Higher Tax Rates & Loss of Concessions

A non-resident estate may face higher income tax rates on income earned from Australian assets after death. The applicable rates are identified by reference to Part II of Schedule 1 to the Income Tax Rates Act 1986.

Other tax consequences may include:

• potential loss of franking credit refunds; and
• additional land tax surcharges in some jurisdictions.

These outcomes can increase the tax burden on the deceased estate and reduce the amount available for distribution. Executors may also face penalties for failing to comply with the tax obligations applying to a non-resident trust.

Ineligibility for the Capital Gains Tax Discount

A non-resident executor may not access the 50% CGT discount when the estate sells an asset held for at least 12 months. The discount would otherwise reduce the capital gain included in the estate’s taxable income.

Entitlement to the discount for taxable Australian property may depend on assessment by the Commissioner under Section 99 of the ITAA 1936. That assessment is discretionary, so the discount is not automatically available to a non-resident estate.

Foreign Resident Capital Gains Withholding Rules for Property Sales

The 15 Percent Withholding Rate

Foreign resident capital gains withholding (FRCGW) applies when a foreign resident executor sells Australian real property. For contracts signed on or after 1 January 2025, the purchaser must withhold 15% of the property’s market value, with no minimum value threshold.

The purchaser must pay the withheld amount to the Australian Taxation Office at or before settlement. The withholding is credited against the estate’s final income tax and CGT liability.

Property covered by these rules includes:

• homes;
• vacant land;
• residential and commercial buildings;
• certain leases; and
• some indirect Australian real property interests.

Clearance Certificates & Variation Notices

An Australian resident vendor may avoid withholding by providing a valid Australian Taxation Office clearance certificate to the purchaser at or before settlement. However, a foreign resident executor cannot use the Australian resident clearance certificate process. 

The executor’s legal personal representative may instead apply for a variation notice if the 15% withholding exceeds the estate’s expected Australian tax liability on the sale.

Without a variation notice, the purchaser must withhold the full 15% and remit it to the ATO. The application should be supported by relevant calculations and evidence. If an amount is withheld, the legal representative may claim it as a credit in the deceased estate’s trust tax return using the purchaser’s FRCGW payment confirmation.

Capital Gains Tax & CGT Event K3 for Non-Resident Beneficiaries

The Trigger for CGT Event K3

CGT Event K3 may arise when a resident deceased estate transfers an asset to a foreign resident beneficiary. Section 104.215 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997‘) applies where the asset is not taxable Australian property in the hands of the foreign resident beneficiary and the capital gain would otherwise escape Australian tax.

Assets such as shares may be affected by an in-specie distribution. The deceased estate, rather than the beneficiary, is responsible for the resulting CGT, which must be paid before the asset is transferred.

Impact on the Residuary Estate

CGT Event K3 can reduce the value of the residuary estate because the deceased estate bears the associated tax liability. This may leave less available for beneficiaries who receive the residue, including Australian resident beneficiaries.

The impact can be unequal where a will gives a specific asset to a foreign resident beneficiary but does not state who must bear the resulting tax. The estate may pay tax on the transfer from funds that would otherwise have been distributed among residuary beneficiaries.

Main Residence Exemption Limitations

A non-resident beneficiary may not receive the main residence exemption for inherited Australian property. The exemption is subject to strict conditions, including rules applying to property connected with a deceased foreign resident.

For property sold after 30 June 2020, the exemption is generally unavailable where the deceased was a foreign resident, unless the foreign residency lasted less than six years and a life event test is satisfied. Relevant life events include:

• a terminal illness affecting the owner or a family member;
• the death of a family member; or
• a marriage breakdown.

Income Tax Rules for Distributions to Foreign Beneficiaries

Trustee Obligations for Non-Resident Beneficiaries

An executor acting as trustee has two key obligations when a non-resident beneficiary is presently entitled to estate income:

• include the beneficiary’s share of the deceased estate’s net income in the trust tax return; and
• pay tax on the beneficiary’s behalf at the applicable non-resident tax rates.

Beneficiaries are generally not presently entitled to estate income until the estate is fully administered. However, if income is distributed earlier, the executor must assess the beneficiary’s status and meet the relevant tax obligations.

Non-Resident Tax Rates on Estate Income

Estate income distributed to a non-resident beneficiary is taxed at non-resident tax rates, with the rate starting at 30% from 1 July 2024. The estate must withhold the relevant amount and account for it through the trust tax return.

No Medicare levy is payable on a non-resident beneficiary’s share of the estate’s net income. Furthermore, the tax treatment applies whether the distribution is made before final administration or after the estate has been distributed.

Double Taxation Risks

A foreign beneficiary may face tax in Australia and in the country where they live when receiving estate income. Australian-sourced income from the deceased estate may remain subject to Australian tax, while the beneficiary’s home country may also assess the same income under its tax system.

Tax treaties may reduce double taxation, but their treatment of estate distributions can vary. As a result, the beneficiary may need to consider a foreign tax credit claim in their home country for tax paid in Australia.

Practical Solutions for Cross-Border Estate Administration

The Appointment of an Australian Resident Executor

Appointing at least one Australian resident executor, with guidance from wills and estate planning lawyers advising on executor appointments, can help the deceased estate qualify as a resident trust for tax purposes. 

This may reduce exposure to the tax consequences associated with a non-resident trust, including the loss of the tax-free threshold and other concessions.

The executor may be a family member, trusted individual, licensed trustee company, accountant or lawyer. Where a will names a non-resident executor, the available options may include:

• appointing a resident co-executor;
• considering a substitute executor; or
• applying for letters of administration with the will annexed, where the beneficiaries can accept responsibility.

The Liquidation of Assets Before Distribution

A will may direct the sale of Australian property before distribution to foreign beneficiaries. Distributing the net sale proceeds rather than transferring the property itself can simplify the estate administration and reduce the need to deal with complex foreign tax laws.

This approach may also help address the CGT consequences of transferring an asset directly to a non-resident beneficiary. The estate can sell the property, account for any capital gain and tax liability, and then distribute the remaining cash in accordance with the will.

Foreign Investment Review Board Approvals

A non-resident beneficiary who inherits Australian real property may need to apply to the Foreign Investment Review Board. The application process may be costly and time-consuming, and approval is not guaranteed.

Directing the sale of real property before distribution may avoid placing the beneficiary in a position where they must seek approval to hold the property. The will should address the intended treatment of Australian property and the possible tax consequences before estate administration begins.

Conclusion

The choice of executor can affect whether a deceased estate is treated as a resident trust, with consequences for tax rates, the tax-free threshold and available concessions. Property sales, distributions to a foreign resident beneficiary, CGT Event K3 and FRCGW can create further tax liability and compliance requirements.

With these issues considered early, contact wills and estate planning lawyers at LawBridge for practical legal guidance on estate administration, executor appointments and Australian property held by deceased estates. Our lawyers can help assess the estate’s tax obligations, coordinate with taxation advisers and structure the administration to reduce unexpected tax consequences for beneficiaries.

Frequently Asked Questions