Letters of administration when there is no valid will

Letters of administration is the grant made by the Supreme Court of Victoria authorising a person to administer the estate of someone who has died without a valid will — that is, intestate — or where the will exists but no executor is able and willing to act. It is the intestate counterpart to a grant of probate.

Two variants

There are two main types of grant made where there is no appointed executor:

• Letters of administration (on intestacy). Where the deceased left no valid will. The estate passes on intestacy under Part IA of the Administration and Probate Act 1958 (Vic).
• Letters of administration with the will annexed. Where the deceased left a valid will, but the named executor cannot or will not act — for example, the executor has died, renounces, or is unable to be found. The will is followed, but a non-executor administrator is appointed by the court.

Who is entitled to apply

The order of entitlement to apply for a grant on intestacy broadly mirrors the intestacy distribution rules:

1. Surviving spouse or domestic partner.
2. Children (or the children of a deceased child).
3. Parents.
4. Siblings (or the children of a deceased sibling).
5. More distant relatives.

Where more than one person is equally entitled, they can apply jointly, or one may apply with the consent of the others. Where there is dispute about who should administer the estate, the court decides.

Distribution on intestacy

Where there is no will, the estate is distributed in accordance with the statutory formula. For deaths on or after 1 November 2017, broadly:

• Spouse or partner and no children (or only children of that relationship): partner takes the whole estate.
• Partner and children of a previous relationship: partner takes personal chattels and a statutory legacy plus half the balance; the children of the previous relationship share the other half.
• No partner: children share equally; where a child has predeceased leaving their own children, those grandchildren take the child's share.
• No children or descendants: parents, then siblings and their descendants, then more distant relatives.
• No eligible relatives at all: the estate passes to the Crown.

The statutory formula does not take into account the deceased's relationships in the ordinary sense — long-standing friendships, step-children who were not adopted, charities the deceased supported — none of those receive anything unless expressly provided for in a will.

The application process

In outline the process is similar to a probate application:

1. Obtain the death certificate.
2. Confirm entitlement to apply, including any renunciations by others equally entitled.
3. Prepare an inventory of assets and liabilities.
4. Advertise the intended application on the court's online system.
5. File the originating motion, affidavit, and supporting materials.
6. Respond to any requisitions from the Probate Registry.
7. Receive the grant.

Administrator's duties

Once appointed, an administrator has broadly the same duties as an executor: collect the assets, pay the debts and taxes, and distribute the estate. The distribution is dictated by the intestacy rules rather than by a will.

As with an executor, an administrator has personal exposure for distributing too early or wrongly, and legal advice is prudent — particularly given the risk of a family provision claim within the statutory period.

Family provision claims and intestacy

The intestacy formula does not always produce a "fair" outcome. A person eligible to bring a family provision claim under the Administration and Probate Act 1958 (Vic) — spouse or partner, child, step-child, dependant, or other eligible person — can bring a claim within six months of the grant, arguing that adequate provision has not been made. Administrators should not distribute prematurely.

Special situations

• Missing beneficiaries. Where a beneficiary entitled on intestacy cannot be located, an administrator may need to make additional inquiries, apply for a court order or purchase missing beneficiary insurance.
• Overseas assets. A Victorian grant does not automatically operate overseas. A resealed grant may be required in the relevant jurisdiction.
• Small estates. Very small estates can sometimes be administered without a formal grant, subject to the asset holders' requirements.

For assistance obtaining a grant of letters of administration, see our letters of administration service and the broader probate and deceased estates area.

Who can apply

The person entitled to apply for a grant of letters of administration is set by the intestacy rules and the Court's practice, in a defined order of priority. The spouse or domestic partner has the first entitlement, followed by children and then more distant relatives. Where multiple people share the top rank, they commonly agree between themselves who will apply, with the others consenting or renouncing by affidavit.

Intestacy distribution

The intestacy rules distribute the estate to defined categories of family in a defined order. The result is often different from what the deceased would have chosen if a will had been made. Unmarried partners who do not qualify as domestic partners, step-children who were not adopted, and close friends and charities have no entitlement under intestacy. Where the family circumstances do not fit the standard pattern, advice should be sought early to identify any family provision risk and to plan the application accordingly.

Administration with the will annexed

Where a will exists but the executor named in it has predeceased the will-maker, is under legal incapacity, or renounces probate and no alternative executor is named, the applicant seeks a grant of letters of administration with the will annexed. The application is similar in form to a probate application but is technically a grant of administration.

Distribution and family provision

As with a probate estate, the administrator should not distribute the estate before the statutory period for family provision claims has expired. Distribution before that time can expose the administrator to personal liability if a claim is later made and the estate has been fully paid out.