Notice to apply for administration (Form 136)

Where a person has died without a will, someone may want a grant of administration while the spouse or next of kin, who have the prior claim under s 63 of the Probate and Administration Act 1898, have not applied. Supreme Court Rules 1970 Part 78 r 53 lets any person require them to apply by filing and serving a notice to apply for administration (formerly called a citation to pray for administration). Form 136 is that notice (formerly SCR Form 109). The notice tells the recipient that to comply they must, within 14 days after service (28 days if served outside NSW), file an answer stating they intend to apply (Form 137; the time limits are in r 54), and then start proceedings for a grant with reasonable promptness. If they do not comply, the court may grant administration to the person named in the notice without further notice to them.

When you need it

• The deceased left no will, or left a will under which no executor was appointed, or the executor renounced or has died.
• Another person has a prior right to administration but is not applying and will not consent.
• You are a relative, beneficiary under the will or a creditor and want the estate administered.

1. 1

   Court details and title

   The form is pre-set for the Supreme Court, Equity Division, Probate List. The case number is marked not applicable. Add the deceased's name and last address, and your details under Prepared by.

2. 2

   Recipient and paragraph 1

   Insert the name and address of the person being served, then the deceased's name, place of residence, and place and date of death.

3. 3

   Paragraphs 2 to 4: the will and your interest

   State whether you believe the deceased died without a will, or left a will (annex a copy marked A). Where applicable, state that no executor was appointed, or that the executor renounced or died. Then state your relationship to the deceased or that you are a beneficiary or creditor.

4. 4

   Name the proposed administrator

   The closing paragraph says the court may grant administration to a named person if the recipient does not comply. Insert that person's name.

5. 5

   Signature and further details

   Sign with your capacity and date, and give your address and an address for service (in NSW unless an exception in UCPR r 4.5(3) applies).

• The notice is served on the person with the prior right; it is not filed to start proceedings (the case number is marked not applicable).
• The recipient has 14 days after service, or 28 days if served outside NSW, to file an answer (Form 137) and must then pursue their own application diligently.
• Keep proof of service, because the 14 or 28 days run from service and you will need to show the notice was served if you rely on it later. Form 41 is the approved affidavit of service.

• Ask first whether the person will consent to someone else applying; the notice is for when they will neither apply nor step aside.
• Annex the will if there is one; paragraph 2 refers to it as annexure A.
• Where the deceased left a will naming an executor who will not apply, the matching notice is Form 138 (notice to apply for probate).