Devolution of mining interests under the Mining Act 1992

What is a mining interest?

A mining interest is a general term used to refer collectively to various rights and interests arising under the Mining Act. Some of these rights and interests include ‘authorities’ (which consist of exploration licences, assessment leases and mining leases) and ‘mineral claims’.  A mining interest confers rights, benefits, liabilities and obligations on the holder.

When the holder of a mining interest dies, their interest forms part of their estate to be dealt with in accordance with their will or the statutory rules that apply when someone dies intestate or partially intestate (that is, without a valid will or with a will which fails to deal with the whole estate).

A mining interest has been left to me.  How do I know what is involved in owning it?

If you want to find out more information about a mining interest that you think you will inherit from a deceased person’s estate, you can request information from MEG by emailing titles@regional.nsw.gov.au  This can help you find out the status of the mining interest - such as the type of mining interest, the date on which it was granted and a description of the area and minerals to which it relates. 

You should consider seeking legal advice to assist you in obtaining the information you might require and understanding the particular rights, duties, conditions and obligations that might come with the particular mining interest that has been left to you. 

How do I establish the value of an application or mining interest?

You will need to seek professional advice to assist you in determining the value of a pending application for a mining interest or a mining interest itself. 

A mining interest has been left to me and I don’t want it. What do I do?

Generally, a beneficiary cannot be forced to accept a gift under a will, and this includes a gift of a mining interest.  If you do not want to accept the mining interest, you may be able to give up the gift.  You should obtain legal, financial and taxation advice as a disclaimer can have tax, family, bankruptcy and social security law implications. Obtaining independent advice is also important to ensure that any disclaimer by you is done properly in compliance with the legal requirements for a valid and effective disclaimer.

If you are planning on disclaiming a mining interest gifted to you, please notify Assessments & System on titles@regional.nsw.gov.au to ensure this is reflected in records relating to the mining interest.

What happens to a person’s property when they die?

When a person dies, all of the property they owned as at the date of their death, with the exception of any property co-owned as a joint tenant, forms part of their estate to be dealt with in accordance with their will (or the applicable rules of intestacy if the person died intestate). The executor or administrator of the person’s estate will be responsible for using the estate property to pay for the deceased’s funeral and testamentary expenses, debts and other liabilities before distributing it to the beneficiaries entitled to it.

Any property which the deceased person held as a joint tenant with another person (as opposed to tenants-in-common) does not pass into the deceased’s estate but passes by operation of law to the surviving joint tenants.

Who needs to be notified of the deceased’s death?

Generally, it is appropriate to notify the organisations with which the deceased person had dealings by sending them a letter accompanied with a certified copy of the death certificate. The solicitor instructed to act for the estate would normally attend to this. In the letter, it is common to seek clarification on the requirements each organisation has before they will permit dealings with the deceased’s asset.  Such organisations can include MEG (in the case of mining interests held by the deceased), banks, share registries, insurance companies, income providers such as the Department of Social Services, pension funds and service providers.

Why is a grant of representation needed?

A grant of representation confers legal authority, on the persons to whom it is made, to deal with the assets of the estate.  Depending on the assets in the estate, it is generally needed because asset holders, such as banks, share registries, and other institutions and third parties, such as the Department, NSW Land Registry Services and mortgagees will typically require a certified copy of the grant of representation to be provided to them in order that they can be satisfied that they are dealing with the person who has authority to act for the estate and deal with the assets.

Who is responsible for applying for a grant of representation?

Where the deceased person left a valid Will, the person or persons appointed as executors under the Will are normally responsible for applying for a grant of representation called a ‘grant of probate’.

Where the deceased person died intestate, then one or more of the statutory next of kin would normally make an application for a grant of representation called a ‘grant of letters of administration on intestacy’.

What is involved in applying for a grant of representation?

Obtaining a grant of representation involves preparing and filing a number of legal documents with the Supreme Court.  Generally, unless the application is contested (for example because there is a dispute about which will is the last valid will or about who should be the legal representative for the estate), the evidence given in support of the application is submitted in affidavit form (that is, a sworn statement in writing) and does not require appearing in Court or giving oral evidence.  The main affidavit in support of the application is required to address certain matters, including details of the assets and liabilities of the deceased as they existed at date of death.  Prior to filing the application, a notice of intention to apply for the grant must be advertised on the Supreme Court’s Online Registry.  This would normally be handled by the solicitor engaged to act for the estate.

The process for obtaining a grant can be complex, depending on the individual circumstances of the estate.  The matters required to be addressed in the application also differ depending on whether a grant of probate or a grant of letters of administration is sought.  Further and helpful information about the process involved, as well as the documents and evidence required to be filed, can be found on the Supreme Court’s website.  You can consult this information to work out what your next steps should be.  Alternatively, you can seek the assistance of a solicitor in preparing the application.

How long does it take to get a grant of representation?

There are a number of factors which can affect how long it takes to obtain a grant of representation, including the complexity of the deceased’s affairs, claims on the estate, disputes about the validity of the Will, Court processing times and whether the Court requires any requisitions to be satisfied after having considered the application for the grant.  A requisition is a request by the Court to amend the application in some way or to provide further affidavit evidence in support of it.  For example, if dementia was listed as a cause of death, the Court may require additional evidence (usually from the will-drafter explaining that the deceased nevertheless had testamentary capacity when he or she signed the will).

Generally, in a typical case where the application is uncontested and the affairs of the estate are of moderate complexity, it can take between 3 to 4 months to prepare the application.  Once the application is filed in the Court, timing will depend on the Court’s processing times, which generally varies between 4 to 5 weeks.

Is a grant of representation always needed?

Whether a grant of representation is needed will often depend on the nature and value of the estate assets and the specific requirements of the organisations responsible for those assets.  In most cases, where the estate comprises assets over a specific value threshold, where the assets comprise land or a mining interest, it will generally be necessary to obtain a grant of representation in order to deal with those assets.

In other cases, it may be possible to administer an estate without obtaining a grant of representation if, for example:

(a)           the assets are under a particular value threshold;

(b)           the assets are held with another person in a joint tenancy (with the consequence that the surviving joint owners inherit the asset by operation of law);

(c)           the assets are held in certain trust arrangements; or

(d)           the trustee of the deceased’s superannuation fund is bound pursuant to a binding nomination to pay the death benefit other than to the deceased’s legal representative (i.e. the estate).

Is there a time frame or general rule-of-thumb for how long an estate can take to be administered?

As a general guideline, but not a fixed rule, the executor or administrator (as the case may be) should aim to administer the deceased’s estate within 12 months of the deceased’s death.  However, depending on the nature of the assets comprising the estate, the complexity of the deceased’s affairs and whether any claims are made on the estate, it is not uncommon for the administration of an estate to take longer than 12 months to finalise.

If a person dies and their next of kin live overseas, can they be involved in administering the estate in the same way as if they lived in NSW?

The next of kin of a deceased person are generally not involved in the administration of an estate unless the deceased died intestate and they apply to the Court for, and obtain, a grant of letters of administration on intestacy.  As the administrators appointed under this type of grant, the next of kin would then be involved in, and responsible for, administering the estate.

However, where the next of kin live overseas, the Court prefers to issue the grant to a person resident within NSW, such as a resident appointed as attorney for the next of kin.  In those circumstances, the attorney to whom the grant is made will be responsible for administering the estate in accordance with the law.

If a person dies and their next of kin live overseas, can they be a beneficiary of an estate in the same way as if they lived in NSW?

The next of kin will only be beneficiaries of the estate of the deceased in circumstances where the deceased died intestate or where the deceased left a valid Will but that will failed to completely dispose of all of the estate (resulting in what is known as a ‘partial intestacy’).  In those circumstances, the fact that the next of kin may reside overseas does not affect their entitlements to the estate.  There may however be taxation issues which arise from the foreign residency of the next of kin.  Specialist professional advice should be consulted on those issues.

If a person has died intestate, are there any alternatives to applying for a grant of probate to deal with the person’s estate?

When a person dies intestate, it will generally be necessary for one or more of the next of kin to apply for a grant of representation in order to deal with the deceased’s estate.  The applicable form of grant of representation in the case of a person who has died intestate is not a grant of probate, but rather a ‘grant of letters of administration on intestacy’.  Those of the next of kin to whom the grant is issued will be the administrators of the deceased’s estate with the legal authority to deal with the estate assets.

The deceased died with an application for a mining interest still pending.  What happens to the application?

The death of the applicant does not automatically result in the cancellation of the application.  Rather, the pending application ‘subsists’ for the benefit of the estate of the deceased applicant and may continue to be dealt with at the request of the legal representative of the deceased applicant (i.e. the executor or administrator of the deceased’s estate).  In broad terms this means that the deceased’s legal representative may decide to proceed with the determination of the pending application, which, if granted, will result in the mining interest forming part of the deceased’s estate to be dealt with in accordance with the deceased’s Will or the applicable rules of intestacy.  The deceased’s legal representative should take professional advice as to whether it is appropriate in the circumstances to request that the pending application subsist for the benefit of the deceased’s estate.

The deceased was the holder of a mining interest on his or her death.  What happens to the mining interest?  Who becomes entitled to the mining interest?

A mining interest which was held by a deceased person devolves (i.e. passes to) the person or persons who are entitled to it by operation of law.  How the mining interest so devolves can depend on several factors, including:

• whether the mining interest was subject to any contractual or other conditions which affect the manner in which it is to devolve in consequence of the death of a holder;
• whether the deceased left a valid Will.

Generally, in the absence of any contractual or other conditions which might affect the manner in which the deceased’s mining interest is to devolve by operation of law, the person or persons on whom the mining interest will devolve will be either:

(i)            the beneficiaries of the deceased’s estate in accordance with the deceased’s last valid Will; or

(ii)           if the deceased died intestate, the next-of-kin of the deceased.

This is because the nature of a jointly held mining interest is that it is held as tenants in common. This means that if it was co-owned with one or more persons, then the deceased’s interest would ordinarily form part of their estate and be dealt with in accordance with their Will or the rules of intestacy.

How do I transfer the deceased’s mining interest to the person/s on whom it has devolved by operation of law?

A devolution application form will need to be completed and lodged with the Department together with supporting evidence showing that the person/s seeking to have their name recorded as the holder of the mining interest are entitled to it by operation of law.

Please refer to the document check list and evidentiary requirements below (as well as printable pdfs) for a guide about the minimum evidence that is generally expected. The Department may require additional or other evidence depending on the circumstances.

• Document check list and evidentiary requirements (with glossary) (PDF, 111.17 KB)

Without limitation on the evidence the Department may require in order to be satisfied of the person or persons a mining interest has devolved to, it will generally be necessary to provide the following documents:

In respect to the devolution of a mining interest where the deceased left a valid will:

1. completed AD11 Form for an authority or a SST5 form for a mineral claim;
2. an original certified copy of the grant of probate of the deceased’s will or the grant of letters of administration with the will annexed (or a certified copy of the Reseal if the grant was issued by a Court other than the Supreme Court of NSW);
3. an original certified copy of the applicant’s photo identification (such as passport or driver licence);
4. consent of the executor or administrator to the devolution application (where the executor or administrator is not the applicant).
5. In respect to the transmission of a mining interest where the deceased died intestate:
6. completed AD11 Form for an authority or a SST5 form for a mineral claim;
7. an original certified copy of the letters of administration on intestacy (or a certified copy of the Reseal if the grant was issued by a Court other than the Supreme Court of NSW);
8. an original certified copy of your photo identification (such as your passport or driver licence);
9. consent of the administrator to the devolution application.

There are some terms you may come across which have specific meanings.  The following is a list of these terms and their corresponding meaning:

Administrator means a person appointed by the Supreme Court, generally pursuant to a grant of letters of administration on intestacy or letters of administration with will annexed, to have the legal authority to deal with and administer a deceased person’s estate in circumstances where the deceased did not leave a valid will or left a will that either failed to appoint an executor or where the named executor is for some reason unable or unwilling to act.

Authority in the context of the Mining Act, means an exploration licence, an assessment lease or a mining lease.

Beneficiary means a person who is entitled to receive a gift of the deceased’s property, whether it be cash, a specific asset or part or all of the residue of the deceased’s estate a share of the assets that the deceased held at his or her date of death, either pursuant to the terms of the deceased’s will or in accordance with the statutory rules of intestacy.

Certified copy means a copy of a document that is signed and certified to be a true copy of the original document, usually by a justice of the peace, solicitor or other person who has legal authority to certify a document.

Death certificate means the official certificate issued by the NSW Registry of Births, Deaths and Marriages when someone passes away, that includes details of the person’s death.

Deceased estate means the property and assets which were owned by the deceased as at his or her date of death.