Letters of Administration

Types of grant

• Letters of administration on intestacy. The deceased died without a valid will. The estate passes under the intestacy rules in Part IA of the Administration and Probate Act 1958 (Vic).
• Letters of administration with the will annexed. There is a valid will but no executor is available — for example, the executor has died, renounced or is unable to act.
• Letters of administration for a limited purpose. Occasionally granted for a specific purpose or period, such as pending determination of a will's validity.

Who can apply

On intestacy, the surviving spouse or domestic partner has first priority to apply. In the absence of a spouse or partner, adult children, then parents, then siblings, then more distant relatives may apply. Where the entitled person does not wish to act, they can renounce or consent to another person applying. On applications with the will annexed, priority is generally given to the person entitled to the residue of the estate.

Documents required

• Originating motion for letters of administration.
• Affidavit deposing to relationship to the deceased, absence of will, assets and liabilities.
• Inventory of assets and liabilities as at date of death.
• Death certificate.
• Consents or renunciations from persons with equal or prior entitlement, where required.

Intestacy distribution

The current Victorian intestacy rules apply where death occurred on or after 1 November 2017. In broad terms:

• Where the deceased is survived by a spouse or domestic partner and no children (or only children of that relationship), the surviving partner takes the whole estate.
• Where there are children from other relationships, the estate is divided between the partner and children on a statutory formula involving a statutory legacy.
• Where there is no surviving partner or children, the estate passes to parents, then siblings, then more distant relatives.
• If no eligible relatives exist, the estate passes to the Crown as bona vacantia.

These rules produce outcomes that are often different from what the deceased would have chosen, which is one of the strongest reasons to make a will.

Complications

• Domestic partners. A domestic partner may need to prove the relationship — usually by evidence of cohabitation for the required period or registration under the Relationships Act 2008 (Vic).
• Estranged relatives. The intestacy rules do not distinguish between close and distant relationships. Estranged adult children may still be entitled.
• Foreign assets. Assets located overseas may require a separate grant in the jurisdiction where they are held.

When letters of administration are required

Letters of administration are the grant issued by the Supreme Court of Victoria where there is no valid will, where the executor named in a valid will is unable or unwilling to act, or where a will exists but no executor has been appointed. The applicant is the person entitled to a grant under the priority set by the Court's rules and the intestacy provisions of the Administration and Probate Act 1958 (Vic).

Priority of entitlement on intestacy

Where a person dies without a will, the estate is distributed in accordance with the intestacy rules. The rules give priority to the spouse or domestic partner, then to children, then to more distant relatives, in a defined order. The person entitled to apply for a grant of letters of administration follows a similar order. Where more than one person shares the top rank — for example, a spouse and adult children — those persons commonly agree between themselves who will apply, with the others consenting by affidavit.

Documents and evidence

• A certified death certificate from Births Deaths and Marriages Victoria.
• Evidence that no valid will exists, or that any known will is not effective.
• Evidence of the applicant's relationship to the deceased — marriage certificate, birth certificate, or evidence of a domestic partnership.
• An inventory of assets and liabilities as at date of death, with supporting statements.
• Consents or renunciations from any person of equal or higher priority who will not be applying.

Where a will exists but a grant is still needed

Even where a will exists, letters of administration with the will annexed may be required if the executor named in the will has predeceased the will-maker, is under legal incapacity, or renounces probate and no alternative executor is named. The application is similar in form to a probate application but is technically a grant of administration rather than probate.

Distribution under intestacy

The intestacy rules distribute the estate to defined categories of family. The result can be different from what the deceased would have chosen if a will had been made. In particular, unmarried partners, step-children who have not been adopted, and close friends have no entitlement under intestacy unless they qualify as a domestic partner or fall within the defined categories. Advice should be sought early where the family circumstances do not fit the standard pattern.

Family provision risk

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

Limitations of general information

The intestacy rules and application requirements are technical and vary with the facts of each estate. This page is a general introduction and is not a substitute for advice on the estate in question.