It depends on the nature of the assets. If the estate is small and the assets comprise say a motor vehicle, furniture and personal effects and a small bank, credit union or building society account, these can usually be dealt with – in the case of a Will – by production to the bank or financial institution of the Will, a death certificate, evidence of the executor’s identity, a completed withdrawal form and a completed indemnity in the form required by the bank or institution. In this case the executor is personally liable for the payment of the funeral expenses and debts of the deceased, up to the value of the estate, and is personally liable to the beneficiaries for payment of their entitlement.

Where there is no Will, in the above circumstances, subject to production of the death certificate, a completed withdrawal form and a completed indemnity as above, and evidence of the identity of the next of kin, payment may be made to the next of kin who will then be liable for payment and distribution as above to the persons entitled.

One disadvantage to proceeding without a grant of Probate or Letters of Administration is that the person dealing with assets is not able to obtain protection from liability for claims through the publication of statutory notices. An option to consider is to refer a small estate to the New South Wales Trustee and Guardian who has additional powers in dealing with small estates including the filing of an election to administer the estate which provides all the protections of a grant of Probate or Administration.

The Probate Rules (Part 78 of the Supreme Court Rules 1970) require an application for Probate to be made within six months of the testator's death. If the application is not made within that period an explanation of the reasons for delay will have to be given in the form of an Affidavit, either a separate Affidavit or included in the Affidavit of the executor.

One of the beneficiaries, usually a major beneficiary, can apply for Letters of Administration with the Will Annexed. When that application is granted the applicant is the Administrator of the Estate, with all the duties, obligations, rights and powers of an executor to carry out the wishes of the deceased as set out in his/her Will.

A limited grant of Administration can be granted to his/her guardian, to expire on the executor turning 18. At that time a grant can be obtained by the executor to complete the administration of the estate.

The duty of the executors, if they decide to accept their appointment, is to obtain Probate and discharge their duty of care towards the beneficiaries. If the disagreement between executors is causing delay in the application for Probate, one of them, preferably with a solicitor's advice, should give notice to the other that he/she intends to apply for Probate and call on the other executor to join in the application. If that executor fails to respond within the specified time, the first executor may proceed to apply for Probate on his/her own, with leave being reserved to the other executor to come in and prove the Will.

No, it is the executor of the last surviving executor who is automatically the executor in the first estate “by right of representation” as soon as he or she obtains a grant of Probate of the Will of that last surviving executor. If the last surviving executor dies without a Will, a further grant will be required to complete the administration of the first estate. The application to the Court will be for Letters of Administration “cta. dbn”. (cum testamento annexo, de bonis non administrates - with the Will annexed, in respect of the unadministered assets).

The costs of the legal work of and incidental to obtaining the grant of Probate or Letters of Administration, up to delivery of the grant by the Court, are regulated as to the maximum amount chargeable. Costs in the administration of estates are deregulated. Practitioners must disclose to their clients, before commencing the retainer, their fees, including GST, for work in estates whether costs are regulated or deregulated. However, note that the disclosure requirements do not apply where the total of the legal costs, excluding disbursements, are not likely to exceed $750 or any amount prescribed by the regulations, whichever is higher.

Not necessarily. If the monies are going to be received from the realisation of assets and paid out within a short period — a few months only — they can be paid to the credit of the estate in a solicitor’s trust account. However, if there is any significant delay in investment of monies not required to be distributed, those monies should be invested prudently by the executor as provided in s 14A of the Trustee Act 1925 (NSW) (“Trustee Act”).

As soon as practicable once the executor has made provision for the payment of all debts and liabilities of the deceased and the estate. As a general rule, if not paid within 12 months after the death of the deceased, the legacies bear interest from that time at 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.

A limited grant of Administration can be granted to his/her guardian, to expire on the executor turning 18. At that time a grant can be obtained by the executor to complete the administration of the estate.

Either or both of the executors can apply to the Court under s 63 of the Trustee Act for an opinion, advice or direction on any question regarding the management or administration of the estate property or regarding the interpretation of the Will. Provided no fraud, misrepresentation or wilful concealment is involved, an executor who acts in accordance with the opinion, advice or direction of the Court is deemed to have discharged his/her responsibility as executor.

A Notice of Intention to Distribute the Estate (or Trust) should be advertised, in the prescribed form, giving at least 30 days for claimants to notify the legal personal representative of their claims. Distribution should not take place until at least six months after the date of death or, if the legal personal representative has received notice of an intention to make a family provision claim which has not been commenced, at least 12 months after the date of death.

Section 95 of the Adoption Act 2000 (NSW) provides that an adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to them; they are regarded in law as the parents of the adopted child, who is regarded in law as the child of the adoptive parents and as having ceased, on the making of the adoption order, to be the child of the birth parents. The intestacy provisions of the Succession Act 2006 (NSW) provide that an adopted child is regarded as a child of the adoptive parent and for the purpose of distribution and the child’s biological relationships are to be ignored.

No, similarly if the solicitor is a co-executor with another person. Disclosure of the basis and estimated amount of costs will need to be disclosed to the beneficiaries affected, usually the residuary beneficiaries.

Under s 85(1AA) of the Probate and Administration Act 1898 (NSW), accounts must be verified and filed or verified, filed and passed where the executor or administrator is:

(a) a creditor of the estate of the deceased;

(b) the guardian of a minor who is a beneficiary of the estate of the deceased;

(c) the executor or administrator of the estate where the whole, or a part which, in the opinion of the Court, is a substantial part, of the estate passes to one or more charities or public benevolent institutions;

(d) a person, not being a beneficiary, or, in the opinion of the Court, a substantial beneficiary, of the estate, selected at random by the Court, or

(e) a person otherwise required to do so by the Court.

Further, an executor or administrator may wish to file accounts, for example, in order to apply for commission.

On rare occasions in the Will a specific legacy is left for the executor to cover their executorial work. In that event no further order is needed for payment of the commission specified. Similarly if there is a legacy or other bequest to the executor contained in the Will, there is a prima facie presumption that the legacy or bequest is intended to cover any entitlement to commission. Otherwise payment of commission may be authorised by the Court on application by the executor on the filing and passing of accounts in the estate. The payment of a commission may also be agreed by all the beneficiaries provided they are of age and not subject to any legal disability.

The quantum of payment of commission can be agreed to by all of the beneficiaries if they are sui juris (have legal capacity), otherwise application should be made to the Court for an order for payment of commission at the time of filing and passing the estate accounts.

The amount which may be allowed to the executor seeking commission will depend on the degree for which he or she has been responsible for the discharge of the office of executor. The commission for private executors will be based on their "pains and trouble", and will be such as is "just and reasonable", having regard to their involvement in the administration. The normal range is between 1 and 1.5 per cent of the gross value of corpus and about 2 per cent on income. Excessive payments of commission or costs are liable to be set aside under s 86A of the Probate and Administration Act 1898 (NSW).

In the Supreme Court decision of Buckley and Others v Permanent Trustee Co Ltd (1990) 21 NSWLR 112 it was held that a trustee company may be liable to a reduction in its normal rate of commission if the co-executor had participated in discharging the executorial duties.