What Happens When No Executor Is Named in the Will?

Usually, when a person makes a Will, they appoint a person they trust to administer the Will and carry out their last wishes. This person, known as the executor, is responsible for collecting the deceased’s assets, paying any outstanding debts and distributing the assets to the beneficiaries, as per the Will.

However, there may be instances where no executor was named at the time the Will was created. When no executor has been named or, for some reason, the executor named in the Will is not able or unwilling to apply for a grant of probate, a beneficiary named in the Will or some other person may be able to apply to the Supreme Court for a grant of Letters of Administration with the Will annexed.

These kinds of applications can be very complex. Applicants are advised to seek an experienced lawyer when applying.  There are also special duties that apply to the person who is granted the Letters of Administration.  If you don’t carry out the legal duties required under a Letters of Administration you could be liable for any losses which can be substantial under some circumstances.

How Do I Prepare an Affidavit?

When preparing an affidavit, there are several rules that you must follow. Failure to adhere to any of these guidelines may result in your application being rejected by the Supreme Court.

An affidavit cannot be handwritten. It must be typed on white A4 paper using at least 12-point font and black ink. All matters discussed in the affidavit must appear in numbered paragraphs and each page of the affidavit must be numbered. When putting together the affidavit, applicants must staple the pages in the top-left corner.

Once completed, you must swear or affirm your affidavit in the presence of an authorised witness. Both you and your witness must sign the affidavit on the cover of the Will or somewhere on the Will that does not interfere with the text. This is called marking the Will.  This are special rules about swearing or affirming so speak to a lawyer if you are unsure.

Authorised witnesses can be either a Justice of Peace, a lawyer who holds a current certificate, or a public notary.

Probate Law in Sydney: Probate and Administration Act

For residents of New South Wales, probate laywers based in Sydney can help with the complicated process of probate. Different states have different laws pertaining to probate, and in NSW the governing act is the Probate and Administration Act (1898). There are many sections that cover different aspects of dispersing an estate and it can be extremely tough to navigate. A lawyer specializing in probate law can provide guidance and offer you comfort as a result. It is hard enough to lose a loved one, but an executor has an additional commitment and responsibility in making sure their last wishes are carried out.

Searching for a probate lawyer can also be cumbersome. It is important to hire someone who understands the laws as they relate to your specific state and what is required from the executor. Communicating quickly is of the essence in today’s day and age and using the Internet to research potential legal teams is the natural place to start. Choose a probate lawyer in Sydney that is accessible and provides up front details regarding cost and sets realistic expectations. The executor often has a responsibility to the rest of the family and an experienced probate lawyer can offer insight based on previous cases worked.