Handling an Indigenous Estate in NSW

Justeen Dormer
Jun 17, 2021
10 min read

Updated: 7 hours ago

Probate & Estate Administration

When someone dies, one person has to step forward and sort out what they owned. If there is a Will, that is usually the executor named in it. If there is no Will, it is the administrator, normally the closest family member. The job is almost the same either way.

The sequence is the same too. Find out what there is. Get the Court’s permission to deal with it. Pay what is owed. Then hand out the rest. Most estates take six to 12 months.

When the person who died was Aboriginal or Torres Strait Islander, there is one extra thing to check. What it means for you depends on whether there is a Will, so check that first.

A note for Aboriginal and Torres Strait Islander readers. This article talks about death and estates. We know Sorry Business comes first. Almost nothing on this list has to happen in the first few weeks. The parts that carry a deadline are flagged where they appear.

If you are the one who has been left out, this is not the article for you. Read Indigenous Estate Distribution in NSW: Can You Still Inherit? instead. It explains what you can ask the Court to do.

Am I the executor or the administrator?

It depends on whether there is a Will. Here is the difference.

	There is a Will	There is no Will
What you are called	Executor	Administrator
Who does the job	The person named in the Will	Usually the closest family member
What you ask the Court for	Probate	Letters of administration
Who inherits	The people named in the Will	A fixed list set by law
Can community law change who inherits	Only for anything the Will does not cover	Yes, the Court can be asked

Probate is the Court’s confirmation that the Will is valid and that you are the right person to deal with the estate. Letters of administration do the same job where there is no Will. Both are called a grant.

If you do not know yet whether there is a Will, you are not behind. Finding out is step one.

What do I have to do, in order?

There are seven steps. You will not do them all in one week, and you are not meant to.

Look for a Will. Search their papers. Ask any solicitor they used, their bank, and NSW Trustee and Guardian. In a country town, ring the local firms. Write down every search you make and keep that note. If you find nothing, the Court will want to see what you did.
List what they owned and what they owed. Bank accounts, a house, a car, tools, money owed to them. Then funeral costs, debts, unpaid bills and tax.
Find out where the superannuation went. Do this early. It is often the biggest thing the person owned, and it may not belong to the estate at all. More on that below.
Work out who inherits. If there is a Will, read it carefully and check it covers everything. If there is no Will, the law follows a fixed order. It first looks for a spouse (which can include a husband, wife or de facto partner), then children, then parents, siblings, grandparents, and aunts and uncles. Either way, ask whether the community would say something different.
Apply to the Supreme Court for a grant. Probate if there is a Will, letters of administration if there is not. Banks and Land Registry Services usually want to see the grant before they release anything.
Publish a notice saying you intend to hand out the estate, then wait. This is called a notice of intended distribution. It goes on the Court’s online registry. This is an important step that should not be skipped.
Pay the debts, then distribute. Keep a record of every payment. Give the people who inherit a simple statement showing what came in and what went out.

Doing this job is like being handed the keys to someone else’s house and asked to tidy it up. The keys do not make it yours. Everything you do, you do for the people who inherit.

How long will it take?

Step	Usual time
Searching, valuing and gathering papers	one to three months
The Court granting probate or letters of administration	around four to eight weeks after you file
The wait before it is safe to hand anything out	at least six months from the death, and at least 30 days from your notice
Paying debts and distributing	one to three months
A straightforward estate, start to finish	six to 12 months
If someone asks the Court for a distribution order	add several months, sometimes much longer
If someone brings a family provision claim	add six to 18 months

Slow is normal. An estate that takes nine months is not a sign that anything has gone wrong.

One timing point to know early. If you apply for the grant more than six months after the death, you have to explain the delay to the Court. It is not a bar, and Sorry Business is a reason a Court will understand. You just have to say so.

What am I personally on the hook for?

This is the part nobody tells executors and administrators, so here it is plainly. The job is not a formality. If you get the order of things wrong, the money can come out of your own pocket.

Four traps.

Handing out too early. If you distribute before six months have passed since the death, and before your notice of intended distribution has run its 30 days, you can lose important protection. Someone can then make a claim, the money is gone, and you can be left covering it.
Handing out after you have been told about a claim. Once you are made aware that someone has made a claim, or intends to, stop and get legal advice. Do not distribute anything further unless the Court permits it or the application is decided.
Assuming the notice protects you from everything. It does not. The notice of intended distribution protects you against a family provision claim, which is a claim by someone saying they should have been provided for out of the estate. It does not protect you against an application for a distribution order. Those are two different things with two different rules. A lot of general information online misses this.
Acting unreasonably. Ignoring letters, refusing to account, or running a hopeless fight can lead to a costs order against you personally.

If money has already gone out and the Court later makes a distribution order, the Court can order the person who received it to give it back. It does not automatically come out of you. And money already spent on someone who depended on the deceased, for their support, education or getting a start in life, cannot be clawed back.

Do I need a lawyer, or can I do this myself?

Honestly, sometimes you do not.

You may not need a grant at all. If the estate is small, and there is no house in the person’s sole name, banks will often release the balance without one. Ask the bank what its limit is before you spend money on a Court application. Some estates are finished with a death certificate and two phone calls.

You can apply for the grant yourself. People do. The Court has forms and a registry that will tell you what is missing.

Get help when any of these are true:

Someone says they should inherit under community law, or you think they might
The Will is unsigned, damaged, or written on something unusual
There is a house, a business, or a farm
The family does not agree about who the next of kin are
Someone has threatened a claim
There is a debt you are not sure the estate can pay
You are being asked to hand money out and you are not certain it is safe

The last one is the important one. If you are unsure whether you can safely pay someone, that uncertainty is itself a reason to ask.

The extra step for an Aboriginal or Torres Strait Islander estate

The fixed list uses legal relationship categories such as marriage, birth and adoption. That structure may not reflect Aboriginal and Torres Strait Islander kinship relationships or caring responsibilities. Someone may be a brother in every way that matters without sharing a parent. Someone may be the aunty who raised him.

So the law lets the Supreme Court share an estate a different way. The Court may follow the laws, customs, traditions and practices of the community the person belonged to. That decision is called a distribution order. The power is in Part 4.4 of the Succession Act 2006. That is the only law reference in this article.

It only reaches property the Will does not deal with. This is the point most people get wrong, so read it twice.

If there is no Will

The whole estate is open to a distribution order. Anyone who says they should share in it under the community’s laws and customs can apply. So can you.

If there is a valid Will covering everything

A distribution order is not available. Community law does not override a valid Will in New South Wales. Your job is to carry out the Will.

That may not sit well with the family, and you should be ready for that conversation. Someone who believes they should have been provided for still has a route. It is a family provision claim, and on that kind of claim the Court must take any relevant Aboriginal or Torres Strait Islander customary law into account. It is a different application with a different deadline.

If the Will does not cover everything

This happens more often than people expect. A Will might deal with the house and say nothing about the rest. A gift might fail because the person named died first.

Whatever the Will does not deal with is treated as though there were no Will for that part. A distribution order can reach that part, and only that part. If you are an executor in this position, you are also the person who can apply.

Three things that follow, whichever applies

You can be the one who asks. You do not have to pick a side in a family argument. You can put the question to the Court and let the Court decide. For someone caught between two branches of a family, that is often the calmest way through.

Once an application is on foot, you stop. Once you apply, or once you are told someone else has, you must not hand out anything more. Get legal advice. Wait until the Court decides, or until the Court says you may go ahead. This is a hard rule, not a courtesy.

Proper notice is wider than usual. A Court asked for a distribution order expects the people who might be affected to have been served, and expects the application to have been advertised in newspapers circulating in the community’s country. That is more than an ordinary estate needs. Ask before you assume the standard notice is enough.

Two different 12 month deadlines

These get confused constantly, including by people who should know better. They are not the same clock.

	Family provision claim	Distribution order
Who brings it	Someone who says they should have been provided for	Someone who says community law gives them a share
When it applies	Will or no Will	Only where property is not covered by a Will
The deadline	12 months from the death	12 months from the grant
Can it be extended	Yes, if the Court is persuaded there is good reason, or if everyone agrees	Yes, but the Court does not have to
Absolute bar	No	Yes, once the estate is fully handed out
Does your notice protect you	Yes, if you followed it properly	No

What that means for you in practice. The family provision clock is already running from the day the person died. The distribution order clock has not started until the Court issues your grant. So an estate can be past one deadline and nowhere near the other.

Where does the superannuation go?

Superannuation usually does not form part of the estate. The fund decides who gets it, unless it is paid to the estate.

That matters to you in two ways. If the super is paid straight to a partner or child, you never handle it, and it is outside anything the Court can redirect. If it is paid to the estate, it may be the largest thing you are administering.

The same goes for life insurance paid to a named person, a house owned as joint tenants, which passes automatically to the other owner, and anything held in a family trust.

Find out early. Ring the fund and ask whether a death benefit nomination is in place. You cannot plan the estate until you know.

Who pays for all this?

The reasonable costs of administering an estate come out of the estate, not out of your own pocket. That includes a solicitor’s costs of getting the grant. You are doing a job for other people, and you are not expected to fund it.

The other half matters just as much. Someone who acts unreasonably may not be covered, and can be ordered to pay costs personally. Keeping good records and asking before you act is what keeps you on the right side of that line.

Every dollar spent on the estate is also a dollar less for the people who inherit. Tell them what things are likely to cost, early, so nobody is surprised.

If you are a beneficiary and nothing seems to be happening

You are entitled to ask, and asking is not rude.

Write to whoever is handling the estate. Ask three things. Has a grant been obtained, and when. What is in the estate. And when do they expect to distribute. Keep a copy.

Give them time. Six to 12 months is normal, and an estate with a Court application in it takes longer. But someone who will not answer a reasonable letter, or who cannot say what has happened to the money, is a different matter. That is the point to get advice.

If you think the estate should be shared according to your community’s laws and customs, do not wait to see what they do. That clock runs from the grant.

What to do now

Find the death certificate and order several certified copies.
Search for a Will and write down every search you make.
If you find a Will, read it and check whether it covers everything.
List the assets and the debts.
Ring the superannuation fund and ask where the death benefit is going.
Work out which community or group the person belonged to.
Ask the family whether anyone believes they should have a share.
Do not pay anyone out of the estate yet, beyond the funeral.
Get advice before you apply, so the application is right the first time.

How we can help

We act for executors, administrators and beneficiaries. We advise on probate and letters of administration, on what you can safely pay and when, and on distribution orders where community law and the Will or the fixed list give different answers.

The first conversation is free. If you are holding money and are not sure whether you can hand it over, call before you do, not after.

BOOK AN APPOINTMENT

Disclaimer

This article is general information about the law of New South Wales as at 19 August 2026. It is not legal advice, and reading it does not create a solicitor and client relationship with Dormer Stanhope. It does not take your circumstances into account, and the law in other States and Territories differs. The law also changes. If you are handling the estate of an Aboriginal or Torres Strait Islander person, speak to a solicitor about your own position.