Letters of administration in Victoria

The Supreme Court of Victoria identifies three main types of grant of representation. The distinction matters, because it determines both who may apply and who ultimately receives the estate.

• Probate — there is a will and the executor named in it applies.
• Letters of administration with the will annexed — there is a will that can be admitted, but the executor cannot or will not apply. The will still governs the distribution.
• Letters of administration — there is no will, or the will cannot be admitted to probate. The estate is distributed on intestacy.

People often use "letters of administration" loosely to cover the second and third situations. They are not the same, and confusing them can lead to the wrong application being prepared.

The Supreme Court notes that in most instances the grant is made to the closest surviving next of kin of the deceased — for example a spouse or partner, or a child. Where the person with the strongest entitlement does not wish to act, or cannot act, someone else with an interest in the estate may apply instead.

An administrator's position is similar to an executor's once appointed: the same duties to collect the assets, pay debts properly, keep records and distribute correctly apply. The practical difference is that the administrator has no will to follow.

Distribution on intestacy is set by Part IA of the Administration and Probate Act 1958. The outcome turns on who survives the deceased. What follows is a simplified summary only. Where there is more than one partner, or a blended, adopted, step or other family structure, the statutory provisions have to be applied to the facts of the particular estate. In broad terms:

A partner, and no children

The partner is entitled to the residuary estate.

A partner, and children of that partner

The partner is entitled to the residuary estate. The children do not take a separate share in this situation.

A partner, and a child who is not that partner's child

The Act uses a two-step calculation. If the residuary estate is worth no more than the partner's statutory legacy, the partner takes the whole estate including personal chattels. If the estate is worth more than the statutory legacy, the partner takes the personal chattels, the statutory legacy, interest on that legacy at the legacy interest rate, and one half of the balance. The other half of the balance is shared between the deceased's children.

No partner

The Act sets an order of entitlement working outwards through children and their issue and then to other relatives.

More than one partner, blended families, adopted and step relationships, and estates where entitlement is unclear all raise questions the Act answers in detail. In those situations it is worth confirming the entitlements before any distribution is made.

The mechanics closely follow a probate application. You will generally need the death certificate showing cause of death, evidence of the applicant's relationship to the deceased, an inventory of assets and liabilities, and an affidavit in support. The notice of intention to apply must be published online through RedCrest-Probate at least 15 days before filing, and the application is then filed online with the Court fee.

In an appropriate case the Court may require further evidence before determining the application, including where the applicant's relationship to the deceased, entitlement to apply or the position of a missing beneficiary requires clarification.

Not every problem with a will means intestacy. A document that does not meet the requirements of the Wills Act 1997 may still be able to be dealt with by the Court in some circumstances, and a will that is unclear may be able to be rectified or construed. If there is a document that looks like a will, do not assume the estate is intestate — have it looked at first.