WHAT HAPPENS TO YOUR THINGS WHEN YOU PASS AWAY?
When someone passes away, they often leave behind property, assets and sometimes debt. This is known as their ‘estate’ and it needs to be managed and finalised.
- Collecting all property and assets
- Distributing the assets according to the Will if there is one, or the laws of intestacy if there is not.
Where there is a valid Will, the estate is finalised by the executor, or executors (where more than one is appointed). Often, this process begins with applying for Probate.
Where there is no valid Will, the closest next-of-kin can finalise the estate. This process may involve applying for Letters of Administration (LOA).
WHAT HAPPENS WHEN SOMEONE PASSES AWAY WITHOUT A WILL?
Someone who passes away without a valid Will has died intestate. To deal with the property and assets they have left behind, someone who is entitled to benefit from the estate, usually the deceased’s closest next-of-kin, can apply for Letters of Administration.
WHAT ARE LETTERS OF ADMINISTRATION?
Letters of Administration are issued by the Supreme Court to the person who is legally entitled to deal with the property and assets of someone who has passed away without a valid will. This person is appointed Administrator of the estate.
WHO CAN APPLY FOR LETTERS OF ADMINISTRATION?
Someone who is entitled to benefit from the deceased person’s estate can apply for Letters of Administration. This is usually the deceased’s closest next-of-kin.
Each State has its own laws around who is entitled to benefit from the deceased estate, and the order in which people can apply.
The Supreme Court of Victoria website provides that you can apply for Administration in the following order of priority:
Lawful spouse or domestic partner
Children, excluding step children, but including children adopted by the deceased
Brothers or sisters
Remoter next of kin
Someone who is entitled to all, or a portion of, the deceased person’s estate can apply for Letters of Administration.
The Supreme Court of New South website outlines that “In basic terms, the order of relatives who can inherit is:”
Spouse(s) only (includes any de facto and registered relationship. There may be more than one spouse), but only if there are no children who are not also children of the spouse(s) entitled to apply.
Spouse(s) and children, if there are children of the deceased who are not the children of the spouse(s) who are entitled to apply. The spouse(s) share with all children of the deceased in accordance with the statutory regime at Part 4.2 of the Succession Act 2006 (NSW)
Children (including the “issue” of any predeceased children. Issue includes all lineal descendants where a child takes if their parent has died)
Brothers and sisters (including the “issue” of any predeceased brother or sister. This includes half-siblings and siblings who are adopted by the parents of the sibling, but it does not include step-brothers or step-sisters)
Aunts and uncles (including the “children only” of any predeceased aunt or uncle. Does not extend to “issue”)
The Court website further states:
Each ‘category’ must be exhausted before moving on to the next and once an eligible relative is found, the process stops.
If there is more than one person in a “category” entitled to a share of the estate then those persons can apply jointly for a grant of administration (for instance the children of the deceased).
If only one or some of several persons entitled to share in the estate apply, they will need to obtain the consent of all persons who not applying, or they need to serve notice of their intention to apply.
Disclaimer: Probate Consultants do not provide any legal advice in relation to who is able to apply for Letters of Administration or how the estate must be distributed once the grant has been issued.
WHAT IS INVOLVED IN APPLYING FOR LETTERS OF ADMINISTRATION?
Applying for Letters of Administration is the same process as applying for Probate.
VICTORIA & NEW SOUTH WALES
The process involves:
- Advertising your intention to apply
- Completing the Application forms
- Preparing all supporting documents
- Lodging the application on the 15th day after the advertisement was published
The application and advertisement are drafted differently, however, the process and administrative costs are the same.
We are not currently assisting clients in WA to apply for Letters of Administration. We aim to launch this service soon.
THE APPLICATION PROCESS
Much of the information we have provided about Probate applies to applications for Letters of Administration, including:
- When you need to apply
- How to apply
- The costs involved
- How long the process takes
- There is a valid Will
- Executor(s) named in the Will apply for the Grant
- Executor(s) administer and finalise the estate
- Property and Assets in the estate are distributed to those entitled under the Will
LETTERS OF ADMINISTRATION
- No valid Will
- Closest next-of-kin applies for the Grant
- Next-of-kin administers and finalises estate
- Property and Assets distributed according to the laws of intestacy
WHAT HAPPENS AFTER LETTERS OF ADMINISTRATION ARE GRANTED?
If their application is successful, the deceased’s closest next-of-kin receives a Grant of Letters of Administration. This is a legal document which appoints them Administrator of the deceased estate and is evidence of their authority to deal with the property and assets left behind.
The Administrator is responsible for:
- Collecting all property and assets
- Paying any debts
- Distributing the estate according to the laws of intestacy
WHAT ARE THE LAWS OF INTESTACY?
When a person dies in Victoria without leaving a valid Will, the property and assets they leave behind must be distributed according to the provisions of Part IA – Intestacy of the Administration and Probate Act 1958 (VIC).