- Emergencies can arise in deceased estates which require a special grant of administration.
- There must be urgency and a serious risk of waste to assets.
- Some situations frequently call for a special grant.
Even the best laid plans go awry. Sometimes life happens, the music suddenly stops and there are particular estate assets that need immediate preservation and protection. Where time is not on your side and a delay in administering the estate might jeopardise its value, an urgent and special purpose grant of administration can be obtained.
This article will focus on grants of administration ad colligenda bona defuncti, the situations in which the need for a special grant frequently arise and what precautions can be taken.
Grants of probate and administration
It is not always necessary to obtain a grant of probate or letters of administration to administer an estate. The requirement for a grant will depend on the nature and value of the assets held by the deceased person. The Supreme Court of NSW generally expects applications for a grant of probate or administration to be filed no later than six months after the date of death (Supreme Court Rules 1970 (NSW), Part 78 Rule 16(1)(a)).
An application for a grant of probate or administration must be accompanied by information about the liabilities of the deceased at the date of death and an inventory of the assets of the estate (Supreme Court Rules, Part 78 Rule 10(1)(a)(iii)). A person applying for a grant has an ongoing obligation to disclose to the Court the assets and liabilities of the deceased (Probate and Administration Act 1898 (NSW), s 81A(1)).
The process of ascertaining the assets and liabilities can be a laborious task. Care must be exercised to ensure the inventory of property accurately reflects the assets of the deceased. This is particularly relevant in circumstances where the inventory of property may be subject to scrutiny as a result of representations made by the deceased to the ATO about the value of certain assets or to access small business capital gains tax relief (Income Tax Assessment Act 1997 (Cth), Division 152) or to ASIC about compliance with the statutory definition of a proprietary company (Corporations Act 2001 (Cth), s 45A).
It can therefore take a number of weeks, or months, after the date of death before an application for a grant is ready to be filed.