Intestate Estates Guide

Historical Overview

1787-1823

Trusteeship, where the State is called upon to administer a will, was mentioned in the Warrant for the Charter of Justice, 2 April 1787. Under this, the Court of Civil Jurisdiction was able to grant probate on wills and issue letters of administration for intestate estates. Between 1787 and 1818, when the earliest reference to intestate estates can be found, civil courts may have been responsible for a form of trusteeship to administer estates. Between 4 February 1814 and 13 October 1823 the Supreme Court of Civil Judicature possessed common law, equity and probate jurisdictions. In 1823 the New South Wales Act (4 George IV Act No 96) established an Ecclesiastical Jurisdiction of the Supreme Court to administer both testate and intestate estates.

Office of the Curator of Intestate Estates

The office of the Curator of Intestate Estates was created by An Act for the Better Preservation and Management of the Estates of Deceased persons in Certain Cases (1 Vic No 24, 1847). The Curator was responsible for a myriad of duties including the collection, management and administration of intestate estates. Administrative inefficiencies resulting from this arrangement ultimately led to the appointment of a prothonotary, formerly titled the Registrar, on 1 March 1856 by a Rule of Court, to act as Curator of Intestate Estates.

Responsibility of the Curator

In 1898, under the Wills, Probate and Administration Act, the property of a deceased person was vested in the Chief Justice until probate, administration or an order to collect was granted. The Curator of Intestate Estates could assume the responsibility of administering an estate if: 

• the deceased was intestate and had no direct heirs,
• the executors named renounced probate,
• there was no application for probate within three months of death,
• an estate was likely to waste and executors or next of kin could not be found,
• was outside the jurisdiction or applied to the Curator to manage the estate,
• delay in administering would cause expense or where the testator had appointed the Curator to act.

The Curator in these cases had all the rights of an executor or relative of the deceased appointed in the will.

Other duties of the Curator

The Curator could also be called upon to administer, manage and discharge the debts and liabilities of any person presumed dead, intestate or if their will could not be located. In this case the Curator was required to await a court order prior to distribution of the estate. This followed newspaper advertisements in the vicinity of the person's residence and, if relevant, in the country where the person's next of kin may live. Real estate and other property could be sold after the expiry of a reasonable time had elapsed for the beneficiaries to be located, and money was to be invested in the Suitors' Fund or as directed by the Colonial Treasurer. The Curator and his staff were not personally liable for any decisions and actions taken in conjunction with administering estates. The Supreme Court could rule for the return of money subsequently claimed by rightful beneficiaries.

Public Trustee

In 1913 the office of the Curator of Intestate Estates was abolished under The Public Trustee Act, 1913 and the office of the Public Trustee was established. The functions of the Curator were taken over by the Public Trustee from 1 January 1914.

List of select record series

Curator of Intestate Estates

Series	Title	Dates
NRS 13539	Index to intestate estate files This is a microfilm copy (Reels 40-41) of the original held in the Public Trust Office.	1818-1914
NRS 13538 [6/3481-3910, 10/27478-28006, 6/26823-24, 6/26843-45]	Case papers  These papers may show the amounts of money owed by the deceased and paid from the estate to individual creditors. Within the papers there are petitions from the Curator of Intestate Estate to the Supreme Court that relate to the administration of the deceased's estate as well as orders to collect and affidavits of death. In certain cases there could also be circulars from shareholders, newspaper cuttings and personal correspondence. View the online index »	1821-1913
NRS 13540 [5/2877-79]	Memoranda books  These volumes comprise memoranda generated by the Curator and relate to letters sent to obtain information on particular intestate estates.	1847-1863
NRS 13541 [2/4166, 5/2875-2876]. Reel 1421 [2/4166] only	Registers of letters received  These registers show for each letter, the name in which the estate is recorded, the date the letter was received and a short description of the letter.	Jun 1850-Sep 1855

Related record series

Series	Title	Dates
NRS 13502 [X953-54, 6/4185-97]	Ecclesiastical Jurisdiction of the Supreme Court of NSW: Case papers relating to the granting of probates and letters of administration  This series includes papers for both testate and intestate estates both before and after the establishment of the Curator of Intestate Estates in 1847. Due to their miscellaneous nature they have been boxed chronologically and indexed by name. The index is available in the reading room [COD516].	1816-1875
- Fiche 5016-5182, 5266-5269, 5305-5307	Supreme Court of NSW, Probate Division: Probate Index, 1800-1985 This index was microfilmed and published by the Probate Division of the Supreme Court. Fiche are available in the reading room.	1800-1985
NRS 13660	Supreme Court of NSW, Probate Division: Probate packets Probate packets contain the last will and testament of the deceased, and accompanying documents.	1817+
NRS 13340  [20/1-7089, 10/9243-54]	Stamp Duties Office, Death Duties Branch: Deceased estate files	1880-1958