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APPLYING FOR LETTERS OF ADMINISTRATION IN TASMANIA

Each State has its own laws governing the administration of the estate of an intestate person. In TAS, the applicable laws are the Administration and Probate ACT 1935 and the Intestacy Act 2010 (TAS). If the deceased was domiciled in TAS and the assets are in TAS then the law of TAS will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of TAS. A grant of Letters of Administration will generally be issued by the Court within 6 working days 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 3 working days.

When intestacy occurs

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.

Do I need to obtain letters of administration?

Not necessarily. The main reason that a grant of letters of administration is required is that some organisations which hold assets of the estate will not release them to the administrator for distribution without sight of a grant of representation from the Supreme Court. You will need to make a list of everything the deceased owned or was entitled to and then make contact with the financial institutions concerned to establish whether they require a grant. This will be more relevant for smaller estates. For larger estates comprising real estate, a grant of representation will almost certainly be required.

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?

Administration and Probate ACT 1935 sets out who can be appointed as an administrator. The Court can appoint a spouse (Including de facto), one or more of the next of kin or the spouse together with one or more of the next of kin. 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 purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. The aim of the legislation in each state is to 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.

An explanation of the rules of intestacy

Spouse's entitlement where there are no issue

If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate.

Spouse's entitlement where issue are also issue of the spouse

If an intestate leaves a spouse and issue and the issue are all also issue of the spouse, the spouse is entitled to the whole of the intestate estate.

Spouse's entitlement where at least one issue is not issue of the spouse

If an intestate leaves a spouse and any issue who are not issue of the spouse, the spouse is entitled to –
(a) the intestate's personal effects; and
(b) a statutory legacy; and
(c) one-half of the remainder (if any) of the intestate estate.

Spouse's statutory legacy

(1) The statutory legacy for a spouse consists of –
(a) the CPI adjusted legacy; and
(b) if the statutory legacy is not paid, or not paid in full, within one year after the intestate's death, interest at the relevant rate on the amount outstanding from time to time (excluding interest) from the first anniversary of the intestate's death to the date of payment of the legacy in full.
(2) The "CPI adjusted legacy" is to be determined in accordance with the following formula:
R = A x C/D
where –
R represents the CPI adjusted legacy;
A is to equal $350 000;
C represents the Consumer Price Index number for the last quarter for which such a number was published before the date on which the intestate died;
D represents the Consumer Price Index number for the December 2009 quarter.

Entitlement of children

(1) If an intestate leaves no spouse but leaves issue, the intestate's children are entitled to the whole of the intestate estate.
(2) If –
(a) an intestate leaves –
(i) a spouse or spouses; and
(ii) any issue who are not also issue of a surviving spouse; and
(b) a part of the estate remains after satisfying the spouse's entitlement, or the spouses' entitlements –
the intestate's children are entitled to the remaining part of the intestate estate.
(3) If no child predeceased the intestate leaving issue who survived the intestate, then –
(a) if there is only one surviving child, the entitlement vests in the child; or
(b) if there are 2 or more surviving children, the entitlement vests in them in equal shares.
(4) If one or more of the intestate's children predeceased the intestate leaving issue who survived the intestate –
(a) allowance must be made in the division of the entitlement between children for the presumptive share of any such deceased child; and
(b) the presumptive share of any such deceased child is to be divided between that child's children and, if any of these grandchildren (of the intestate) predeceased the intestate leaving issue who survived the intestate, the deceased grandchild's presumptive share is to be divided between the grandchild's children (again allowing for the presumptive share of a great grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.

Parents

(1) The parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves –
(a) no spouse; and
(b) no issue.
(2) If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares.

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 the statutory forms and affidavits to enable you to make the application directly to the Supreme Court.


Call AussieLegal on 1300 728 200 to discuss your situation free of charge.

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