Letters of administration with the will annexed in Victoria

The Court's grant information identifies three main types of grant: probate, letters of administration with the will annexed, and letters of administration. The will-annexed grant is issued where the deceased has left a valid will but the executor cannot, or will not, apply for a grant.

Common situations include:

• the will does not appoint an executor at all;
• the only executor, or every executor, has died before or after the deceased without proving the will;
• every named executor has renounced;
• the executor lacks capacity to act and no other executor can apply;
• the appointment fails for another reason and no substitute executor can apply.

Before concluding that this grant is needed, the will should be read carefully for a substitute executor clause. The Court's guidance notes that the will should be read to determine whether any substituted executor has a right to apply.

The key point is that a will-annexed grant does not convert the estate into an intestate estate. The will still governs who receives the estate. What changes is who is appointed to administer it, and how that person's entitlement to apply is shown.

Where there is no valid will at all, see letters of administration. Where the concern is whether a document is a valid will, see what happens if there is no valid will.

The Court's Probate Office FAQs state that the person or persons with the greatest beneficial interest under the will would usually apply, and that an applicant for administration must be over the age of 18.

Greatest beneficial interest

Identifying the person with the greatest beneficial interest usually requires reading the will as a whole. A residuary beneficiary who takes the balance of the estate often has a greater interest than a person receiving a specific gift. Where several beneficiaries share the residue, more than one may be appointed, or some may consent to others applying.

Number of administrators

The Court's FAQs state that it is the general practice of the Court not to grant probate or administration to more than four people.

Minors and people without capacity

A beneficiary under 18 cannot be an administrator. Where the major beneficiary is a minor or lacks capacity, a different applicant, or a different form of grant, may be required, and the Court's guidance for these situations should be followed.

Because the will appoints an executor (or attempts to), the Court needs to know why that person is not applying for probate. Each named executor must be accounted for in the application.

Where the explanation is something else, such as an executor who cannot be located, the Court may require further evidence and the position should be discussed with the Probate Office's guidance in mind. Renunciation is explained in renouncing as an executor.

Applications for letters of administration with the will annexed are made through RedCrest-Probate, the Court's e-filing system. The process follows the general workflow described in how to apply for probate, including publishing a notice of intention to apply at least 15 days before the application is filed.

1. 1Confirm the grant typeCheck the will, any substitute executor clause and the position of each named executor.
2. 2Identify the applicantWork out who has the greatest beneficial interest and whether others consent.
3. 3Gather evidenceCollect the original will, the death certificate and the evidence accounting for each executor.
4. 4Notice and filingPublish the notice of intention, prepare and sign the documents RedCrest generates, file them and post the original will.
5. 5Respond to requisitionsAnswer any request from the Probate Office for further information.

The Court may require further evidence about the applicant's standing, the position of other beneficiaries or, where it applies, security. The requirements depend on the facts. The probate application documents guide explains how evidence varies by grant.

Once the grant is made, the administrator has broadly the same duties as an executor: collecting assets, paying debts, dealing with tax, keeping accounts and distributing the estate according to the will. The will's directions, including any trusts it creates, apply.

Some powers or roles in a will may be given specifically to the named executor or trustee. Whether an administrator can exercise them, and whether a separate trustee appointment is needed for any continuing trust, depends on the wording of the will and should be checked.

The Court's complex applications guidance should be checked where the facts do not fit neatly, such as where a substitute executor may have a right to apply first.

Where more than one person could apply, the person with the greatest beneficial interest is generally preferred, but equal or competing beneficiaries can create difficulty. Common approaches include agreeing who will apply, obtaining consents from those with an equal or prior right, or applying jointly within the limit on the number of administrators. Where agreement cannot be reached, the Court may need to decide.

Evidence usually includes the original will, proof of death, evidence explaining why no executor is applying (for example, a death certificate for a deceased executor or a filed renunciation), evidence of the applicant's entitlement and any consents from others. Requirements should be checked against the current Rules and forms.

Minors, life interests and continuing trusts

Where a minor is a beneficiary or the will creates a life interest or continuing trust, the Court may require more than one administrator or other safeguards. These situations should be identified before the application is prepared.

Security and sureties

An administrator may, in some circumstances, be required to provide security, such as a surety guarantee. Whether security is required, and in what form, depends on the current provisions of the Administration and Probate Act 1958 (Vic), the Rules and the Court's practice at the time. This should be confirmed for each matter rather than assumed.

A will sometimes gives a named executor a personal power or discretion, such as choosing which charities benefit or deciding how personal items are divided. Whether an administrator with the will annexed can exercise that power depends on how the will is worded and on the general law. Where the will relies on the personal judgement of the named executor, advice should be obtained before the administrator exercises the power, because the answer affects the beneficiaries.

• Applying for letters of administration as if the deceased had died intestate when there is a will.
• Overlooking a substitute executor who has the right to apply.
• Failing to account for every named executor.
• Assuming the eldest child or closest relative is automatically entitled to apply.
• Assuming an administrator can exercise every power the will gives specifically to the executor.
• Treating the grant as a ruling on every question about the will's meaning.

We can confirm whether this grant is the right one, identify who is entitled to apply, gather the evidence accounting for each executor and prepare the application. We can also advise on administering the estate under the will once the grant is made.

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