When a loved one passes away without leaving a valid Will, navigating the administration of their estate can be a complex and unfamiliar process. You may need to apply to the Supreme Court for a Grant of ‘Letters of Administration’.

What Are Letters of Administration?

Letters of Administration are a legal document issued by the Supreme Court that authorises a person, known as the ‘Administrator’, to manage and distribute the estate of a deceased person who has not left a valid Will. The Administrator is then responsible for ensuring the deceased’s assets are collected, liabilities are settled, and the remaining estate is distributed according to the law. ‘Letters of Administration’ may be required to deal with the assets of the deceased, as many asset holders will require this authority before they will close or finalise accounts of the deceased.

When are Letters of Administration Required?

Letters of Administration may be required where a person dies without a valid Will, and the estate is to be administered under the intestacy. Letters of Administration may also be required where the deceased left a Will, but the Executor named is unable or unwilling to act. The Supreme Court may grant Letters of Administration to a next of kin or another appropriate person to manage the estate.

Meaning of Intestacy

Intestacy is what happens when someone dies without a Will that properly disposes of their assets.
A person can also die partially intestate, meaning they may have left a Will which disposes of some assets, but not other assets. Those assets which aren’t dealt with under the Will are subject to the laws of intestacy.

How Does Intestacy Happen?

There are many reasons and circumstances that could cause someone to die intestate (or partially intestate), including where:

  • The deceased person never made a Will.
  • The deceased person made a Will but all Executors have died or are unable to act.
  • The deceased person did make a Will, but the Will doesn’t comply with the legal requirements of a valid Will (see Informal Wills). This often occurs where the deceased person has made a DIY Will or used a Will Kit.
  • The deceased made a Will when they didn’t have capacity to do so (read more about testamentary capacity and challenging a Will).
  • There is a Will but it was forged or made under the influence of others (see Challenging a Will).
    Wills and estate planning are complex areas of law. Every detail is crucial and one seemingly small mistake can have huge impacts on the validity of your Will.

Obtaining a Grant of Letters of Administration

The process to obtain a Grant of Letters of Administration involves filing an application with the Supreme Court, supported by necessary documents such as an affidavit from the proposed Administrator and consents from any other beneficiaries. Before filing such application with the Supreme Court, the applicant must advertise their intention to apply and allow at least 14 days. This allows any objections to be made, or creditors to come forward, before the application is lodged with the Court. Once granted, the Letters of Administration give the Administrator the legal authority to act on behalf of the estate.

The Administrator’s Responsibilities

Once appointed, the Administrator has a number of key duties, including:

  • Collecting and preserving the assets of the deceased;
  • Paying any outstanding debts and liabilities of the deceased or the estate; and
  • Distributing the remaining assets to beneficiaries.

The Administrator must act in the best interests of the estate and its beneficiaries, and ensure that all actions taken are necessary and beneficial to the estate. Cases such as McIntosh v McIntosh [2014] QSC 99 and Burgess v Burgess [2018] WASC 279 highlight that an Executor or Administrator must “champion” the interests of the estate, and must not be seen to be acting “half-heartedly” or in a way other than to thoroughly advance the interests of the estate.

How is the Estate Divided

When a person dies without a will, their estate is distributed according to the laws of intestacy. Generally, these rules establish a hierarchy of beneficiaries based on their relationship to the deceased and priority is typically given to close surviving relatives, such as spouses and children. These rules are designed to ensure that the estate is distributed fairly among the deceased’s closest relatives.
The rules differ slightly between each of the Australian states and territories, though both the Australian Capital Territory (ACT) and New South Wales (NSW) are outlined below –

ACT NSW
Survived by spouse and no children Spouse receives entire estate Spouse receives entire estate
Survived by spouse and children, estate worth under $200,000 Spouse receives entire estate If children are children of the deceased and the spouse, spouse receives entire estate
If children are not children of the spouse, spouse receives personal effects, a statutory legacy and ½ remaining estate. Children receive remaining ½ equally
Survived by spouse and children, estate worth over $200,000 Spouse receives $200,000 (plus interest accruing from death), plus ½ remaining estate (if one child) or 1/3 remaining estate (if more than one child)
Children equally receive any remaining estate, after payment to spouse		 If children are children of the deceased and the spouse, spouse receives entire estate
If children are not children of the spouse, spouse receives personal effects, a statutory legacy and ½ remaining estate. Children receive remaining ½ equally
Survived by children but no spouse Children receive entire estate equally Children receive entire estate equally

Costs and Administration Bonds

The costs involved in obtaining Letters of Administration general include legal fees and the Court’s filing fee. In both ACT and NSW, the Court’s filing fees are calculated based on the value of the gross assets of the estate. This fee must be paid when filing the documents with the Court. Such fees are generally paid from the estate. Where no estate funds are available at the time they are required, the Administrator may pay such fees personally and later be reimbursed from the estate.

In some estates, the Court may also require an ‘Administration Bond’. It is a surety made to the Court and is typically for the amount equivalent to the value of the estate. However, the Court has discretion to set a lower amount if deemed appropriate, or dispense with the requirement entirely.

Administration bonds are a protective mechanism designed to ensure the proper administration of the estate. They act as a guarantee that the Administrator will fulfil their duties in accordance with the law, including collecting, managing, and distributing the estate’s assets appropriately. If the Administrator fails in their duties, the bond provides a financial safeguard to compensate for any resulting losses to the estate or its beneficiaries (from the person who made the surety).

MV Law’s Wills and Estate Lawyers can help the family of people who have died intestate in obtaining a Grant of Letters of Administration and administering the estate. If you have a family member who has died without a will, contact us today or complete our online form here.

MV Law Canberra

Ph: (02) 6279 4444

Email: info@mvlaw.com.au