Letters of Administration in Victoria

A grant of letters of administration is needed in three common situations. The first is a complete intestacy — the deceased left no will at all. The second is a partial intestacy — the deceased left a will that disposes of some but not all of the estate, for example a will that only deals with a particular asset. The third is where there is a will but no executor able or willing to act, either because the named executor has died, renounced, or simply cannot be located.

These three situations correspond to different forms of grant: letters of administration on intestacy, letters of administration with the will annexed (where there is a will but no executor), and letters of administration of part of the estate.

The Court appoints an administrator from a statutory order of entitlement set out in the Supreme Court rules and reflecting the intestacy rules in Part IA of the Administration and Probate Act 1958 (Vic). Broadly, priority runs through the surviving partner, children, grandchildren, parents, siblings, nieces and nephews, grandparents, aunts and uncles, and first cousins.

Where two or more people share the same priority — for example three children of the deceased — any one of them can apply alone with the written consent of the others, or two or more can apply jointly. Where there is dispute about priority, the Court may need to determine which applicant is the most appropriate person to administer the estate.

A creditor or other interested person can apply for administration only if everyone with priority renounces or fails to apply within a reasonable time.

Where there is no will, distribution is governed by the intestacy rules. In broad outline:

• A surviving partner with no children of the deceased takes the whole estate.
• A surviving partner where all children are also children of the partner takes the whole estate.
• Where the deceased leaves a partner and children from another relationship, the partner takes the personal chattels, a statutory legacy (currently indexed and substantial), and half of the residue. The other half is divided among the children.
• Where there is no partner, the estate passes to children equally, with the share of any deceased child going to that child's own children per stirpes.
• If there are no children, the estate passes up to parents, then siblings (and their children), then more remote relatives.
• If there are no surviving eligible relatives, the estate passes to the State of Victoria as bona vacantia.

Where two or more people qualify as the deceased's partner — for example a separated but undivorced spouse and a current domestic partner — Part IA contains specific distribution and election rules, and a Court order may be required.

An application for letters of administration is filed electronically through RedCrest, the same probate portal used for executor applications. The supporting affidavit must exhibit the death certificate, prove the applicant's relationship to the deceased (typically via birth and marriage certificates), prove the death of any person who would otherwise have priority, and set out the inventory of assets and liabilities.

Where there is a will but no executor, the will is annexed and the supporting evidence must show why the named executor cannot or will not act. Where the applicant is the deceased's domestic partner, evidence of the relationship — typically joint accounts, lease or property documents, shared correspondence and statutory declarations from friends and family — is filed.

As with probate, a notice of intention to apply must be advertised on the Supreme Court website at least 14 days before filing.

The Court can require an administrator to give an administration bond — security for the proper administration of the estate. The requirement is uncommon for adult applicants of the deceased's immediate family taking the full estate, but is more often imposed where the administrator is taking on behalf of beneficiaries who are minors or under disability, where the applicant resides overseas, or where there is concern about the applicant's solvency.

Once letters of administration issue, the administrator administers the estate substantially as an executor would — collecting assets, paying liabilities, lodging tax returns and distributing the residue. The differences are largely in source of authority and in the distribution: an administrator distributes according to the intestacy rules (or, on administration with the will annexed, according to the will). Like an executor, an administrator should not distribute within six months of the grant if a family provision claim is possible.