Wills & Probate

It is quite possible that, at some time in your life, you will be appointed as executor by a will or be obliged to take charge of the intestate estate of a deceased relative or friend. This kit is intended to give some guidance in making application in a straightforward estate in the Northern Territory.

The rights, powers, duties and liabilities of executors and administrators are outlined in Division 6 of the Administration and Probate Act (NT).

Where the estate is complicated by family trusts, protected persons and the like, it may be advisable to instruct a firm of solicitors or apply to the Court to have the Public Trustee appointed to exercise those powers and duties.

Kit forms are also available at the Supreme Court Registry, Darwin.

For further information or clarification of any point, you can contact the Probate Officer via the following means:

In writing addressed to –

The Probate Officer at the Supreme Court of the NT, GPO Box 3946, Darwin NT 0801;

Via telephone on (08) 8999 6562 or facsimile on (08) 8999 5446; or

Via email at ProbateOfficerNT.doj@nt.gov.au

Legislation:

The Administration and Probate Act (NT)1993 and Rule 88 of the Supreme Court Rules empower the Registrar of the Supreme Court to grant Probate of a will or Administration of an estate of a deceased person, leaving property within the Northern Territory.

Associated Legislation:

Other related legislation includes the Public Trustee Act (NT) 1979, the Wills Act (NT) 2000 and the Family Provision Act (NT) 1980.

Information to know before proceeding:

Terminology / Glossary

Annexure - An addition to a document. Paper based evidence or proof of having completed or performed a required task or of an event having occurred.

Asset – Any property and possessions, especially regarded as having value in meeting outstanding debts and/or commitments which can or may be converted into a cash sum.

Beneficiary – In the broadest sense is a natural person or other legal entity who receives money or other benefit from a benefactor, being the deceased person in this instance.

Caveat – A formal notice filed with the Court to suspend or halt lodgement of a proceeding for a prescribed period of time.

De bonis non - When an administrator is appointed to succeed another who has left the estate partially unsettled, the administrator is said to be granted "administration de bonis non,” that is, of the goods not already administered.

Deponent - A person making a deposition, (such as an affidavit) under oath or affirmation.

Executor (male) / Executrix (female) – A person appointed by a testator to carry out the terms of the will.

Grant of Probate / Probate - The official appointment by the Court of the Executor (or personal representative), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the will.

Letters of Administration – A legal document naming someone to administer an estate when no executor has been named due to the absence of a will.

Liability – The items a person is liable for, especially debts or pecuniary obligations.

Next of kin – The person who is (or persons who are) most closely related to a given person, being the deceased person in this instance.

Qualified Witness – A statutory appointed person who attests to the genuineness of a document or signature by adding their own signature. The qualification of such a person is a Commissioner for Declarations / Oaths or a Justice of the Peace.

Registrar – A Court official responsible for keeping a register or official records. The Registrar is responsible for approving the application for Probate or Letters of Administration.

Renunciation – The act or an instance of renouncing or giving any rights and obligations as an Executor to a will through lodgement of an official document expressing renunciation.

Reseal – The act of applying to the court in another jurisdiction to have the probate, administration or order to the Registrar which has previously been granted sealed with the seal of that Court. (If Probate was granted by the Supreme Court of Victoria, you can apply for a reseal of Probate by the Supreme Court of the Northern Territory).

Testator - A person who has written a valid will which is in effect at the time of his or her death.

Will - A legal document declaring a person's wishes regarding the disposal of their property when they die.

VARIOUS LOCATIONS IN THE NT

There is a slight variation in the Affidavit of Publication and Search depending on where the deceased person resided at the time of death. If the deceased person was a resident of Alice Springs, Tennant Creek or Katherine (or via any of the aforementioned localities), please contact the Probate Officer before proceeding.

Important Information You Need to Know When Completing the Forms

(a)        You should first check with the financial institutions where the deceased held assets to ensure that an application for a grant is required to release those assets.
(b)        The notice of an intended application for a grant or for resealing is to be published in one Darwin daily newspaper and, if the deceased was resident at the date of his death in the Northern Territory at a place more than 200 kilometres from the general post office Darwin, also in a newspaper published and circulating in the district where the deceased resided. The full sheet from each newspaper is to be annexed to the affidavit of publication and search.

 (c)        If more than one person is making the application, with the exception of the affidavit of death, joint or separate affidavits must be made.

 (d)        The will should not be attached to any document but filed separately. The original will is kept on the court file after the grant is made but a copy is annexed to the grant of probate and the grant of letters of administration with the will annexed. The will must be signed in the margin by the applicant and by the witness.

(e)        If it appears that a part of a will has been torn or cut off, or the appearance of the will suggests that there may have been an attempted destruction by burning, tearing or there are other circumstances which suggest that the testator may have revoked the will, the circumstances must be fully explained by affidavit.
(f)        The original death certificate should be filed with the application. If you wish this to be returned, you should annex a photocopy of the certificate to the affidavit of death and also file the original certificate with the application. When the affidavit is sworn the witness will certify the photocopy as a true copy of the original and the originalwill be returned with the signed, sealed grant.  

(g)        If there is no official record of the death of the deceased, an additional affidavit must accompany the application setting out the facts relied on to establish his or her death or the presumption of his or her death.

(h)        Property of the deceased listed in the inventory to the affidavit of Assets and Liabilities should be listed in the order in which the headings appear but the inventory should not show a heading if the deceased did not have property of that description.

(i)         Property held by the deceased as joint tenant should not be included in the inventory but may be noted at the foot of it as shown in the draft.
(j)        The inventory must be signed in the margin of each page by the applicant and by the witness to the affidavit.

(k)        It is not necessary to obtain expensive valuations of assets. An estimation of the value will suffice.

(l)         Each document must have a back sheet bearing the name of the document and giving details of the applicant’s name, address and telephone number. An example of this is included in “Miscellaneous Forms”.

(m)       It is important to bear in mind that the particulars of the deceased shown in the death certificate and in the will must be compatible. For example if in the will the testator is shown as “Margaret Mary Smith of 7 Cavenagh Street Darwin, Clerical Assistant” and the death certificate shows “Maggie Smith of 10 Mitchell Street, Darwin, home duties” the heading on each document should reflect those differences as shown hereunder.

                      THE ESTATE of the late MARGARET   

                      MARY SMITH (also known as MAGGIE

                      SMITH) late of 10 Mitchell Street,

                      Darwin in the Northern Territory of

                      Australia but formerly of 7 Cavenagh

                      Street, Home Duties but formerly

                      Clerical Assistant, deceased.

(n)        Subsection 101(1) and (2) of the Administration and Probate Act states that every executor or administrator appointed under the provisions of this Act shall be deemed to be resident in the Northern Territory. Where not actually so resident, the executor or administrator must file with the Registrar an address in the Territory at which notices may be served.

General Information You Need to Know

The following link provides information on the location of the Registry, filing and search fees payable at the time of lodgement and additional information regarding various circumstances and situations that may be applicable to any application for probate or letters of administration to be lodged.

General Information

Application for Probate

WHO MAY APPLY FOR PROBATE?

  • A sole executor appointed by a will may make application to the Court for a grant of Probate of a deceased estate.
  • If more than one executor has been appointed, all may make the application.
  • If more than one executor has been appointed and one has;


(a) predeceased the deceased; or
(b) renounced his right to take probate; or
(c) reserved his right to come in at a later time the other executor/s may make the application.

The following links are to templates of the forms required to be completed in order to make an application for Grant of Probate and a completed kit to view so that you can see what the forms are required to look like at the time of lodgement.

John Citizen Example Forms For Probate

Probate Kit

Information regarding Probate

Application for Resealing

WHO MAY APPLY FOR RESEALING?

Where a court of competent jurisdiction in a relevant country has granted probate of a will, administration of an estate or an order to collect and administer an estate, the person who is –

(a) in the case of a probate of a will:

(i) the executor to whom the probate was granted;

(ii) a person authorised by that executor, under a power of attorney, to make the application; or


(iii) the executor, by representation, of the will;

(b) in the case of administration of an estate:

(i) the administrator to whom the administration was granted; or


(ii) the person authorised by that administrator, under a power of attorney, to make the application; or

(c) in the case of an order to collect and administer an estate – the Public Trustee in the relevant country to whom the order was granted.

may, upon producing the probate, administration or order to the Registrar, apply to the court to have it sealed with the seal of the court.

The following links are to templates of the forms required to be completed in order to make an application for Grant of Probate and a completed kit to view so that you can see what the forms are required to look like at the time of lodgement.

Forms for Reseal of Probate

Forms for Reseal of Letters of Administration

Information regarding Reseals

Letters of Administration

WHO MAY APPLY FOR LETTERS OF ADMINISTRATION?

The court may grant administration of the estate of an intestate person to –

(a) the spouse or de facto partner of the deceased;

(b) one or more of the next of kin;

(c) the spouse or defacto partner conjointly with one or more of the next of kin; or

(d) such person, whether a creditor or not of the deceased, as the court thinks fit

However, the court will not grant administration to a person in (d) above unless -

(a) there is no such spouse or de facto partner or next of kin;

(b) there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the court, fit to be trusted; or

(c) there is no such spouse or de facto partner or next of kin who, when duly cited, appears and applies for administration

Where the grant is applied for by fewer than all the persons who are in the Territory and are entitled to a grant of administration, the application must be supported by

(a) a form of consent to administration (form 7 in the index) of each person entitled to but not applying for a grant with an affidavit (form 8) verifying the consent; or

(b) an affidavit as to service not later than 14 days before filing the application on each of those people whose consent is not filed.

The following links are to templates of the forms required to be completed in order to make an application for Grant of Probate and a completed kit to view so that you can see what the forms are required to look like at the time of lodgement.

John Citizen Example Forms For Letters of Administration

Letters of Administration Kit

Information regarding Letters of Administration

 

Letters of Administration with the will annexed

WHO MAY APPLY FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED?

The court may grant letters of administration with the will annexed to –

(a) the spouse or de facto partner of the deceased;

(b) one or more of the next of kin;

(c) the spouse or defacto partner conjointly with one or more of the next of kin; or

(d) such person, whether a creditor or not of the deceased, as the court thinks fit

However, the court will not grant administration to a person in (d) above unless -

(a) there is no such spouse or de facto partner or next of kin;

(b) there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the court, fit to be trusted; or

(c) there is no such spouse or de facto partner or next of kin who, when duly cited, appears and applies for administration

Where the grant is applied for by fewer than all the persons who are in the Territory and are entitled to a grant of administration, the application must be supported by

(a) a form of consent to administration (form 7 in the index) of each person entitled to but not applying for a grant with an affidavit (form 8) verifying the consent; or

(b) an affidavit as to service not later than 14 days before filing the application

The following links are to templates of the forms required to be completed in order to make an application for Grant of Probate and a completed kit to view so that you can see what the forms are required to look like at the time of lodgement.

Letters of Administration with Will Annexed Kit

Information regarding Letters of Administration with Will Annexed

 

Miscellaneous Forms

The following links are to templates of the forms required to be completed in order to make an application in relation to specific circumstances or situations as outlined in link to the ‘General Information’ section above.

Affdavit of Delay

Application for Fee Waiver, Deferral or Payment by Instalment

Caveat

Exemplification of Probate

Exemplification of Letters of Administration

Notice of Intended Distribution of Estate

Renunciation of Probate

 

Useful Links

 

Public Trustee for the Northern Territory