APPLYING FOR LETTERS OF ADMINISTRATION IN VIC

Applying for letters of administration in Victoria (VIC) helps family members when the deceased has not made a will or made one that is invalid. Follow this guide to learn more.

Applicable Laws

Each State has its own laws governing the administration of the estate of an intestate person. In Victoria, there are several applicable laws. Such laws are the Administration and Probate Act 1958 and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 and the Supreme Court (Administration and Probate) Rules 2004 (VIC). If the deceased was domiciled in Victoria and the assets are in Victoria, then the law of Victoria will be the applicable law. Hence, the need to know the proper way of applying letters of administration in VIC.

Applicable Court

When applying letters of administration in VIC, you can file at the Probate Office of the Supreme Court of Victoria (contact details are provided at the back of the kit). A grant of Letters of Administration will be issued by the Court within 5 working days of the application being filed. However, it will be a different case when additional information is required. If further information is needed, requests will be sent out by letter within 3 working days. This is known as a requisition.

When does intestacy occur?

When a person dies leaving real property (land or anything attached to it) or personal property of any kind, property distribution must be done. The deceased can direct, during his or her lifetime, how the estate is to be distributed. This is 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. This could also happen when the deceased failed to make a valid will or made a valid will. In some cases, this happens when 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. 

This kit is aimed at the situation where the deceased dies without having made a will.

The distribution of an intestate estate

State law allows to appoint an administrator. This person is to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. Also, this person has the duty of paying any debts the estate owed and distributing the assets under the rules of intestacy. Also, they have the authority to act under a court order which is known as the grant of letters of administration.

Who can apply for letters of administration?

The legislation does not specify who is entitled to apply for a grant of letters of administration. Rather, it results from common law precedents. Judges who decide on points of law not covered by statute that establish the “common law.” These are binding on lower courts in the same jurisdiction.

Common law has established that the next of kin can apply for letters of administration. This is on the basis that they will inherit under the state laws of intestacy, which determine who will inherit a deceased estate if the deceased did not leave behind a will. This generally means that the application can be made by a spouse or de facto partner. In Victoria, this is known as a domestic partner, or child of the deceased. If no such person exists or if, in the court’s opinion, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.

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 holding the assets of the estate will not release them to the administrator. This is unless the administrator for can present a grant of representation from the Supreme Court in sight. You will need to make a list of everything entitled to or assets the deceased had. Then, contact 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 certainly be required.

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 under the intestacy rules discussed below.

The authority of the administrator to deal with the deceased person’s estate should have confirmation from the court. This will satisfy those institutions who hold the deceased’s assets. Also, those that the administrator has the authority to deal with those assets. This will give the administrator some protection from liability in dealing with the estate. The duties of the administrator are explored in more detail in Document 2.

The purpose of the State rules of intestacy

Intestacy occurs frequently in Australia. Government statistics reveal that 6-8% of the matters dealt by the probate registry of the Supreme Court of Victoria involve applications made in circumstances of intestacy. The aim of the legislation in each state is to put try to produce the same sort of result as if the deceased had made a will.

It identifies the deceased’s closest relatives as the primary beneficiaries. Also, it 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. Consequently, the rules do not therefore consider individual circumstances. These rules 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.

An explanation of the rules of intestacy

Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In Victoria, the rules are set out in the Administration and Probate Act 1958 and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 201

1. If there are no children but a surviving spouse OR domestic partner, then the whole of the estate will pass to the spouse or the domestic partner.

2. When there are no children but a surviving spouse AND domestic partner, then their respective shares will depend on a distribution agreement under s.70ZE or an order made by the Court. This is outside the scope of the information provided in this document.

3. If the deceased had a surviving spouse and children of that relationship, the spouse would receive the entire estate.

4. If the deceased had a surviving spouse and children NOT of that relationship the spouse would receive the personal chattels (meaning furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes);

AND

5. 100% of the estate if the estate is valued at less than $451,909 (indexed to CPI); or
If the estate is greater than $451,909, then the spouse receives $451,909 plus interest plus 50% of the balance; and
The children of a previous relationship receive 50% of the balance in equal shares.

6. If the deceased left children but no surviving spouse or domestic partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).

7. If the deceased left no children, spouse or domestic partner, family members would inherit in the following order:

    • Parents (if only one surviving parent, that parent would inherit the entire estate)
    • Siblings – brothers and sisters (either whole or half blood)
    • Nieces and nephews
    • Grandparents
    • Uncles and Aunts
    • Cousins

The estate does not pass to the government unless there are no living relatives.

Please note: If the deceased had made any gift of an asset to his or her child (ren) whilst still alive, then this must be taken into account when determining the shares of the child (ren) in the estate's distribution.

Family provisions Act claims

Section 91 of the Administration and Probate Act 1958 empowers the Court to order that provision out of the estate can be made for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. An order can only be made in favour of a person if an application has been made by that person or on their behalf.

Section 91 of the Administration and Probate Act 1958 empowers the Court to order that provision out of the estate to make the proper maintenance. Alongside this is the support of a person for whom the deceased had responsibility to make provision. This order can only be made in favour of a person if that person has made an application or on their behalf.

The Court must consider the following in deciding whether to make an order:

  • the nature of the relationship between the deceased and the applicant
  • any obligations or responsibilities of the deceased to the applicant, other applicant and the other beneficiaries
  • the size and nature of the estate and any liabilities
  • the financial resources and needs of the applicant, other applicant and the beneficiaries
  • any physical, mental or intellectual disabilities of the applicant, other beneficiaries
  • the age of the applicant
  • any contribution of the applicant (not for payment) by the applicant to building up the estate or to the welfare of the deceased of their family
  • any benefits previously given by the deceased to the applicant or beneficiary
  • whether the applicant was being maintained by the deceased wholly or partly before the death of the deceased. also, there should be a basis on which the deceased assumed that responsibility
  • the liability of any other person to maintain the applicant
  • the character and conduct of the deceased
  • any other relevant matters

When applying for letters of administration VIC, you need to apply within 6 months from the grant of probate or letters of administration. The claim is generally defended by the executor or administrator (where there is no will). The legal personal representative (either executor or administrator) should not distribute the assets until the claim has been resolved.

Can I apply for Letters of Administration myself?

Yes. AussieLegal offers a number of legal kits and paralegal services. These kits are specifically designed to help family members make a personal application and save thousands in legal fees. One of the kits offered helps individuals applying letters of administration in VIC.

Please see the following link or call us on 1300 728 200 to discuss your situation with one of our consultants:

https://aussielegal.com.au/product/letters-of-administration-au/

  • Hyungmin Kim

    Hi, My brother in law passed away without will. Superannuation company asked my sister to provide the letter of administration. I would like to know the cost for the letter of administration. Are you able to assist with it?

    • AussieLegal

      hi Hyungmin,
      Thank you for reaching out, and I’m sorry to hear about your brother-in-law’s passing.
      We’ve sent an email with further details regarding the process for obtaining a Letter of Administration, along with information on the costs involved. Please check your inbox, and feel free to get back to us if you have any additional questions or need further clarification.
      We’re here to assist you with this process.

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