Letters of administration in Victoria

The Supreme Court distinguishes three grants. Probate is for an executor named in a will that can be admitted. Letters of administration with the will annexed are for an admissible will where the named executor cannot or will not apply. Letters of administration on intestacy are for a person who died with no will capable of admission. The distinction controls who can seek authority and whether the will or the statutory intestacy rules govern distribution.

If a handwritten document, damaged will, copy or later codicil exists, do not assume it is ineffective without considering the Wills Act 1997 (Vic) and the Court's unusual-application procedures. A will can also dispose of only part of an estate. That partial intestacy concerns undisposed property even if the will itself can be admitted. See the probate guide for the grant decision.

The Court explains that administration where there is no will is in most instances granted to the closest surviving next of kin, such as a partner or child. That is a starting point, not a universal rule that the oldest child applies or that the person handling the funeral is automatically appointed. For a will-annexed grant, the entitlement of people interested under the will becomes relevant. The Supreme Court (Administration and Probate) Rules 2023 and the circumstances determine the correct applicant and evidence.

Check capacity, interest and other applicants

Identify every person with a relevant interest, whether anyone with a stronger entitlement has died, lacks capacity or does not wish to apply, and whether multiple applicants propose to act. Consents, renunciations and evidence of relationship can matter; ask what the Court needs for the particular grant instead of assuming a signature always resolves priority. If two interested people disagree, seek advice before advertising one person as the uncontested applicant.

Where a beneficiary is a minor or lacks capacity, their interests need careful treatment. Do not treat a child's signature as a valid consent or assume that a parent can always bind the child. The Court may seek additional evidence or directions. In an appropriate case an administration guarantee or sureties may be required; not every application requires one. The Administration and Probate Act 1958 (Vic) addresses administration guarantees, but their application depends on the grant and circumstances.

The Act's intestacy provisions apply where no will governs the relevant property. First identify the estate available for distribution after proper expenses and liabilities. Then establish which people survived the deceased and meet the Act's definitions. The following is a simplified guide, not a distribution calculation; check the authorised Act against the date of death and family facts before paying anyone.

A partner and no children

A qualifying partner generally takes the residuary estate. Confirm whether the person is a spouse or qualifies as another kind of partner under the Act; do not decide that issue on labels alone.

A partner and only children of that same partner

Generally the partner takes the residuary estate and those shared children do not receive a separate statutory share in this situation. The relevant relationship is between each child and that partner, not merely whether the deceased had children.

A partner and a child from another relationship

The position changes if a surviving child of the deceased is not also the partner's child. Broadly, the partner receives personal chattels and a statutory legacy (with the applicable interest), and the remaining balance is divided between the partner and the deceased's children under the Act. If the residuary estate is no greater than the legacy, the partner may take it all. The statutory legacy is indexed; the amount applicable to this estate depends on the date of death. This is not a reason to estimate or freeze a figure from a different year.

More than one qualifying partner

The Act has specific provisions for multiple partners, which can involve agreement or a Court determination of their respective interests. A separated spouse and a domestic partner can produce a question that the simple one-partner examples do not answer. Do not distribute by simply applying one partner's entire-share example twice.

No partner

The Act looks first to children and the issue of a child who died before the deceased, then moves through a statutory kinship order to other relatives where the nearer categories do not apply. The effect of a predeceased relative, adoption and other relationships must be checked under the statutory definitions and rules. Never pay a more remote relative solely because they came forward first.

A domestic partner's entitlement may depend on registration, the nature and duration of the relationship and the evidence available. Material such as shared finances, living arrangements and formal records can help establish facts, but no single document automatically answers every statutory question. Where several people assert partner status, obtain tailored advice before calculating shares or asking one to consent on behalf of another.

Partial intestacy can arise when a valid will does not dispose of all property or a gift fails. The will can govern one part while intestacy provisions govern another. A blended family may include a partner's children who are not the deceased's, or the deceased's children from another relationship: these distinctions alter the statutory calculation. Trusts, jointly owned assets and superannuation may also sit outside the distributable estate, depending on their legal position.

If the estate includes Victorian land, a grant is generally needed where the deceased held it solely or as a tenant in common. A surviving joint proprietor may instead use a survivorship application for jointly held land. Ask each bank, registry or insurer whether it requires the grant before commencing an application; some estates can be administered informally. The administration guide explains the different property steps.

The Supreme Court's application guidance sets out the RedCrest-Probate steps. A no-will application needs an account of the search for any will and evidence of the applicant's entitlement. A will-annexed application instead requires the will and explanation of why the executor does not apply. The precise affidavit and supporting evidence depend on the circumstances.

1. 1Decide whether a grant is necessaryInventory the assets and liabilities, confirm how land is held, and ask institutions what authority they will accept.
2. 2Identify the grant and proposed applicantSearch for wills and codicils; confirm the relevant family and beneficiary relationships and the position of anyone with a stronger claim.
3. 3Gather evidenceObtain the death certificate showing cause of death, asset and liability details, relationship documents and any required consents or renunciations. For a will-annexed application, keep the original will and codicils safe.
4. 4Publish the noticeAdvertise the intention to apply in RedCrest-Probate at least 15 days before filing, with details appropriate to the grant sought.
5. 5Prepare and fileComplete the originating motion, sworn or affirmed affidavit and inventory, upload supporting documents and pay the relevant Court fee. Follow the Court's directions for any original will or other originals.
6. 6Respond and obtain the grantAnswer requisitions and any questions about priority, beneficiaries or missing persons. If granted, the electronic document establishes the administrator's formal authority for the estate assets that require it.

The Court may seek more evidence about relationship, entitlement or the position of a missing beneficiary. A notice and application are not a guarantee of appointment. The probate costs guide separates Court fees from professional and administration costs.

Appointment begins the formal collection and administration work; it is not the distribution itself. Produce the grant where an asset holder requires it, gather estate money, pay proper debts and tax, keep an inventory and accounts, and determine who is entitled before final distribution. An administrator with the will annexed follows the will to the extent it governs the estate; an intestacy administrator applies the statutory distribution scheme.

Check property and superannuation separately. A fund may pay a death benefit directly to an eligible person instead of the estate. A Victorian land transmission after a grant is different from the surviving joint proprietor's application. Tax returns and possible family provision claims can affect the timing of distribution. Read duties and personal risk before making an interim payment.

Advice can focus on which grant applies, the applicant's entitlement, relationship evidence, a difficult will, an intestacy calculation or the practical administration following a grant. You may also apply without legal representation where the position is straightforward; getting advice on one issue need not mean handing over every task.

If you make an enquiry, describe whether a will has been found, the surviving family relationships and what asset holders have asked for. Do not include sensitive original documents in an initial enquiry.