WHAT IF THERE IS NO WILL?
If there is no Will then there is no executor appointed to administer the estate. A Grant of Probate cannot be obtained in this situation. Instead, a Grant of Letters of Administration on intestacy (meaning the deceased left an incomplete Will or no Will) is applied for. The application process is very similar to seeking a Grant of Probate.
In this case, rather than the estate being distributed according to the terms of a Will, the estate is distributed according to a formula set out in an Act of Parliament.
The person entitled to the largest share of the estate (the next of kin) under the government formula usually applies for the Letters of Administration. This person is known as the administrator of the estate.
WHEN CAN THE ESTATE BE DISTRIBUTED?
The estate should not be distributed until all liabilities, including tax, have been paid.
The estate also should not be distributed until the limitation period within which a Will or estate can be challenged has expired. The length of this period in NSW is 12 months.
If an executor distributes the estate within this limitation period and there is a challenge to the Will or to the intestacy formula then the executor will be personally liable for any amount payable to the person who brought the challenge.