Dealing with the loss of a loved one is never easy, and the added burden of managing the estate can be overwhelming. This is particularly true when someone dies without leaving a Will, a situation known as dying “intestate”. In such cases, a court can grant “letters of administration” to a person, giving them the legal authority to manage and distribute the deceased’s assets.
This article explains what letters of administration are, who can apply for them, and the role of the administrator. The information is general only, and we strongly recommend obtaining professional advice relevant to your circumstances.
What are Letters of Administration?
In Western Australia, the granting of letters of administration by the Supreme Court legally empowers a specific person, known as the administrator, to act on behalf of a deceased person’s estate. This grant is often necessary when someone dies without a valid Will, or in some cases, when an existing Will fails to appoint an executor, or the appointed executor is unable or unwilling to act.
Who can apply for Letters of Administration in Western Australia?
Typically, the deceased person’s surviving spouse or de facto partner will apply to the Supreme Court for letters of administration. If there is no surviving spouse or partner, the deceased’s adult children may apply, or the surviving parents, siblings or other next of kin.
The court considers various factors when deciding whom to appoint as administrator, including the applicant’s relationship to the deceased, character, and ability to manage the estate responsibly.
The process of obtaining Letters of Administration
Applying for letters of administration where there is no Will involves a formal legal process which can be made after 14 days of the date of death. The following documents are filed with the Probate Office of the Supreme Court:
- Motion (application) for grant of letters of administration.
- Affidavit of administrator/applicant. The affidavit supports the application and typically sets out details such as particulars of the deceased, the relationship between the applicant and the deceased, the searches undertaken to try to locate a Will, names of those entitled to an interest in the estate and their relationship to the deceased, and an explanation of any irregularities.
- Statement of assets and liabilities
- Death certificate
- Documents demonstrating either that the other next of kin agree the applicant should be appointed as administrator or that they have at least been notified and can object to the appointment
Where complex issues are involved, the court may raise requisitions and additional documents/affidavit material may be required.
What is the role of the Administrator?
An administrator has several legal responsibilities and must administer the estate according to law. Key duties include:
- Identifying and collecting assets: The administrator must locate and secure all the deceased’s assets, including bank accounts, property, investments, and personal belongings. If the deceased was entitled to receive superannuation, special rules apply, and specific advice should be obtained.
- Paying debts and liabilities: Outstanding debts, such as mortgages, loans, and taxes, must be paid from the estate.
- Distributing the estate: The administrator must distribute the remaining assets according to the laws of intestacy which dictate how property is divided among surviving family members.
- Keeping records and accounting: Maintaining detailed records of all transactions and providing a final statement to the beneficiaries.
Where there is no Will, whilst an administrator undertakes similar duties as an executor appointed under a Will, the distribution of estate assets is made according to a formula under intestacy laws, as opposed to the provisions of a Will. These rules are complex – the distribution depends on various circumstances including the estates value, which family members survived the deceased, and their relationship with the deceased.
How can a lawyer help?
While it is possible to navigate the process of obtaining letters of administration independently, a lawyer can provide guidance on the relevant processes and assist with interpreting intestacy laws for distributing the estate to beneficiaries. There are also specific situations that warrant specialised legal advice:
- Complex estates: Estates with significant assets, multiple beneficiaries, or international holdings can be complex to manage.
- Uncertainty about entitlements: Legal guidance is critical if there is uncertainty about who is entitled to inherit or disputes among potential beneficiaries.
- Contested applications: Legal representation can help protect your interests if multiple people apply for letters of administration, and the court needs to determine the outcome.
- Specific assets: As mentioned above, if the deceased was entitled to superannuation benefits, there are special rules which apply, and advice should be obtained. This is also the case if the deceased had an interest in a company, in a family trust, in a partnership or any other type of business interest or if the deceased was involved in legal proceedings before their death.
Conclusion
Letters of administration play a key role in ensuring the orderly management and distribution of estates when someone dies without a Will in Western Australia. Understanding the process and the responsibilities involved is essential for anyone who may find themselves in this situation. If you require letters of administration, seeking advice from a legal professional can provide clarity and support during a challenging time.
If you or someone you know wants more information or needs help or advice, please call (08) 9758 8073 or email [email protected].