Each State has its own laws governing the administration of the estate of an intestate person. In the ACT, the applicable laws are the Administration and Probate ACT 1929 (ACT). If the deceased was domiciled in the ACT and the assets are in ACT then the law of ACT will be the applicable law.
If there are assets in multiple States or Territories, please call AussieLegal on 1300 728 200 to discuss your options.
Applications are filed at the Probate Office of the Supreme Court of ACT. 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 1929 (ACT) 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.
Distribution of estate if intestate is survived by partner
How intestate estate of intestate is to be distributed:
If the intestate is not survived by issue:
The partner is entitled to the whole of the intestate estate.
If the intestate is survived by issue:
If the value of the intestate estate does not exceed $200 000, the partner is entitled to the whole of the intestate estate.
If the value of the intestate estate exceeds $200 000, the partner is entitled to be paid out of the intestate estate:
$200 000; and
interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriated to the partner (inclusive); and
an additional sum equal to—
if 1 child or the issue of 1 child of the intestate survives the intestate but no other issue of the intestate survives the intestate—1/2 of the value of the balance of the intestate estate; or
(ii) in any other case—1/3 of the value of the balance of the intestate estate.
The issue of the intestate are entitled to the balance (if any) of the intestate estate after payment to the partner of the sum or sums to which the partner is entitled under this item.
Distribution of estate if intestate not survived by partner
How intestate estate of intestate is to be distributed:
If the intestate is survived by issue the issue are entitled to the whole of the intestate estate.
If the intestate is not survived by issue but is survived by a parent or both parents the parent is entitled to the whole of the intestate estate or, if both parents survive the intestate, the parents are entitled to the whole of the intestate estate in equal shares.
If the intestate is not survived by issue or by a parent but is survived by next of kin the next of kin are entitled to the intestate estate in accordance with section 49C.
If the intestate is not survived by issue, by a parent or by next of kin the Territory is entitled to the intestate estate.
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.