LETTERS OF ADMINISTRATION

Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. This kit will state the law as it applies in Western Australia. If the deceased was domiciled in WA and the assets are in WA then the law of WA will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of WA (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 3 to 6 weeks of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will be sent out by letter.

When does intestacy occur?

When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate. This kit is aimed at the situation where the deceased dies without having made a will.

The distribution of an intestate estate

State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.

Who can apply for letters of administration?

Section 25 of the Administration Act 1903 sets out who is entitled to apply for a grant of letters of administration. An application can be made by or more of the persons entitled in distribution to the estate of the intestate. If there is no such person resident within the jurisdiction and fit to be trusted, or a person who is entitled fails to apply, the Court can grant administration to any other person even if they are a creditor. The persons who are entitled to inherit the estate of a person who has died without leaving a will are set out in the State rules if intestacy. Section 25 of the Act sets out who will be entitled to inherit in certain circumstances. These rules are explained in detail in paragraph 9 below. The application is usually made by the next of kin.

Definition of a De facto relationship

A de facto partner of a person who dies is defined in section 13A Interpretation Act 1984 as a person who has lived in a de facto relationship. A de facto relationship is defined as a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship. It does not matter whether the persons are different sexes or the same sex or if either of the persons is legally married to someone else or in another de facto relationship. The following factors are indicators of whether a de facto relationship exists but are not essential:

• the duration of the relationship
• whether the two persons have resided together
• the nature and extent of common residence
• whether or not a sexual relationship exists
• the degree of financial dependence or interdependence
• ownership, use and acquisition of property
• degree of mutual commitment to a shared life
• the care and support of children
• the performance of household duties
• the reputation and public aspects of the relationship

Section 15 of the Administration Act 1903 sets out what a de facto partner will be entitled to upon intestacy. Where a de facto partner lived with the deceased for a period of at least 2 years immediately before the death, the de facto partner would have the same entitlements as a spouse. Where the deceased left behind both a spouse AND de facto, then their respective shares of the estate will depend upon the flowing criteria:

1.  Where the de facto partner and deceased lived as de facto partners for at least 2 years immediately before the death; and
2.  the deceased did not, during the whole or any part of that period, live with their spouse as husband and wife,

the de facto partner will be entitled to one half of the spouse’s share of the estate;

1.  Where the de facto partner and deceased lived together as de facto partners for at least 5 years immediately before the death; and
2.  the deceased did not, during the whole or any part of that period live with the spouse as husband and wife,

the de facto partner will be entitled to the whole of the spouse’s share estate.

The role of the administrator

On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below. The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate. The duties of the administrator are explored in more detail in Document 2.

The purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. Government statistics reveal that in 1994 just over 10% of applications for grants in WA were made in circumstances of intestacy. The aim of the legislation in each State is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances. The rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.

Can I apply for Letters of Administration myself?

Yes. AussieLegal offers a number of legal kits that are specifically designed to help family members make a personal application and save thousands in legal fees:

Letters of Administration Plus $1,250.00

Independent solicitors and paralegals will do all the hard work and prepare all correspondence and the application to the Supreme Court on your behalf.