When a person dies without a Will, the deceased is said to have died “intestacy”. As the deceased did not make a will and choose the beneficiaries of the estate, the beneficiaries are determined by law. A beneficiary of the estate is entitled to apply to the Supreme Court for a “grant of letters of administration” and to be appointed the administrator of the estate.
When the letters of administration are issued, the assets of the deceased are vested in the administrator. This gives the administrator the authority to collect the assets of the deceased for distribution to the beneficiaries.
Section 14 of the Administration Act 1903 (WA) sets out the entitlements of family members in intestate estates.
When applying for a grant of letters of administration, the intended administrator should take the following steps:-
- Search for a Will of the deceased as the Court will not issue a grant of letters of administration unless the intended administrator shows that a thorough search had been carried out but no Will had been found. Make enquiries with family members and with the deceased’s financial planner, solicitor or accountant to find out if a Will exists.
- Obtain the original Death Certificate or a certified extract from the death registry as this will be needed for the application and throughout the administration of the estate. The funeral director is often able to assist with this process. It is not uncommon for the Death Certificate to be issued up to two weeks after the death.
- The next step is to determine the entitlements under intestacy and who is the most appropriate person to apply for the letters of administration. In this regard, the entitlements under section 14 of the Administration Act 1903 (WA) should be carefully reviewed. It is best to speak to an experienced lawyer about which beneficiary should apply for letters of administration. Generally speaking, any beneficiary is entitled to apply. However, the Court has certain requirements that the applicant must meet. If there is more than one beneficiary and only one is applying for letters of administration, then the others who are not applying must give their consent. If there are family dynamics and consent will not be given or if a family member cannot be contacted to provide the consent, then the Court will in all likelihood, require the intended administrator to guarantee the proper distribution of the beneficiaries up to the value of the estate. This guarantee is also required where beneficiaries are under 18 years old.
- The intended administrator should then make a list of the deceased’s assets and liabilities and their respective values. The purpose is to determine the estate for distribution to the beneficiaries. At the same time, this exercise is important as it may lead to the conclusion that it is not necessary to apply for letters of administration. For example, real estate held by the deceased with another person as “joint tenants” will pass on to the surviving joint tenant without requiring letters of administration to be issued. If the deceased left only a small deposit in a bank account, the bank may not require probate to be obtained before releasing the monies to the executor for distribution to the beneficiaries.
- If an application for letters of administration is required, the intended administrator must consider the proper jurisdiction where the application for the grant should be made. For example, the Supreme Court of Western Australia has jurisdiction to grant letters of administration only if the deceased left behind assets located in the State of Western Australia. Hence, if the deceased only left behind real estate located in another state or territory in Australia, then an application for a grant of letters of administration should be lodged in the state or territory where the real estate is located and not in Western Australia.
- The intended administrator can then proceed to make the application for Letters of Administration. As these applications are rather complex, the intended administrator should seek legal assistance with the drafting of the required documents. This is to ensure the Court has all of the required information and so that any requisitions or questions which the Court may have in relation to the application can be answered effectively.
- If the application is in order, the Court will issue the grant of letters of administration. The administrator can then proceed to collect in the assets, pay the estate’s debts and, when ready distribute the estate to the beneficiaries as outlined in Section 14 of the Administration Act 1903 (WA).
Before making an application for a grant of Letters of Administration, it would be prudent to obtain legal advice and/or to retain an experienced lawyer to assist in making the application for the grant. This will ensure effort and expense are not wasted in having to re-submit an application should there be errors or the Court have complex questions about the application.
If you require assistance in applying for a grant of Letters of Administration or have any questions, contact us at Robertson Hayles Lawyers on (08) 9325 1700 or by email at email@example.com.
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.