Willed Australia

Letters of Administration Explained

When a person passes away without a Will, a common misconception is that the state will either immediately take the person's assets or that everything will immediately pass onto their next of kin; however, that is not necessarily the case.

If you do pass away without a Will, a process known as 'Letters of Administration' may need to be completed to distribute your estate. When someone dies without a Will and are considered Intestate, various parties may be able to apply to the court for the legal rights and permission to administer the estate of their loved one.

Who can apply for Letters of Administration?

The court can grant letters of administration to:

  • The spouse of the deceased
  • One or more of the next of kin
  • The spouse jointly with other relatives

NOTE: The person who makes the application must be entitled to at least some share of the estate for it to be granted.

In cases where none of the above may be found, the Court can instead grant letters of administration to a court-appointed guardian or to another person who has been determined to be an appropriate choice. The process for this will depend on the individual circumstances of the deceased, the particulars of their estate, and the nature of their personal relationships.

What else do you need to know?

The most crucial step before making an application to administer an estate is to ensure that a thorough search for the deceased's Will has been undertaken and that you have gone to every effort to locate and execute the Will in question. You cannot simply ignore an existing Will and make an application, as that would negate the deceased's wishes and their legally witnessed, signed and binding documentation.

Distributing the estate if there is no Executor

If a deceased person has a legal Will, but there is no executor, a beneficiary of that Will can apply for Letters of Administration with the Will annexed.

This can be an option if:

· there is no executor named in the Will

· the executor died before the deceased or before applying for probate

· the executor has renounced probate

· the executor is unable or unwilling to act

In these circumstances, if the court chooses to grant administration, the administer will still need to ensure that the Will itself is followed and that the assets are distributed according to the deceased's wishes. In this context, the administer is essentially acting as a court-appointed executor, with the roles and responsibilities that go with it.

It's important to note that an application for Letters of Administration with the Will annexed does not permit any beneficiary to rewrite a Will.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.

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