Willed Australia

Letters of Administration Explained

There is often some confusion about what happens if a person does die without a Will. The 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.

One concept to become familiar with is Letters of Administration. This is essentially a court order that may be issued to determine who will administrate a deceased person's 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 administration to:

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

It is a requirement that the person who makes the application must be entitled to at least some share of the estate in order for it to be granted. This is because it's crucial that the administrator does have a claim to the estate in some verifiable way.

In cases where none of the above may be found, or where no applications are made, the court can instead grant administration to a court appointed NSW guardian or trustee, 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. These will all be taken into consideration.

What else do you need to know?

The most important 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. It is not possible to 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.

There is another element that should be remembered. 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 recognise that an application for Letters of Administration with the Will annexed does not grant any beneficiary the permission to rewrite a Will.

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