LETTERS OF ADMINISTRATION

Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. In South Australia, the applicable laws are the Administration and Probate Act 1919 and the Supreme Court Civil Rules 2006 (SA). This kit will state the law as it applies in South Australia. If the deceased was domiciled in South Australia and the assets are in South Australia then the law of South Australia will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of South Australia. A grant of Letters of Administration will generally be issued by the Court within 1 week of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 1-2 weeks.

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?

The legislation does not specify who is entitled to apply for a grant of letters of administration. Rather it is a result of common law precedents. The “common law” is established over time by Judges who make decisions on points of law not covered by statute which are binding on lower courts in the same jurisdiction. Common law has established that the next of kin can apply for letters of administration, on the basis that they will inherit in accordance with the state laws of intestacy which determine who will inherit a deceased estate in the event that the deceased did not leave behind a will. This generally means that the application can be made by a spouse or de facto partner, or child of the deceased. Under the South Australian legislation a married spouse is known as a lawful spouse, and a de facto partner is known as a putative spouse. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.

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 some 6 -8% of the matters dealt with by the probate registry of the Supreme Court of South Australia involve applications 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 $800.00

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