This article contains information about letters of administration in WA. Read to know more.
Each State has its own laws governing the administration of the estate of an intestate person. This kit will state the law as it applies in Western Australia. If the deceased was domiciled in WA and the assets were in WA, then the law of WA will be the applicable law. Thus, it is important to know about letters of administration in WA.
Applications are filed at the Probate Office of the Supreme Court of WA (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 3 to 6 weeks of the application being filed. This is usually the case unless additional information is required. If further information is needed, requests will be sent out by letter. These requests are known as requisitions.
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 after death by drawing up a will. Thus, intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will.
On the other hand, total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will. This also happens when the deceased made a valid will, but 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.
State law allows for the appointment of an administrator. The appointed individual administrates the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. In accordance with letters of administration in WA, this person has the duty of paying any debts the estate owed. Also, the administrator is responsible for distributing the assets under the rules of intestacy. Additionally, they have authority to act under a court order which is known as the grant of letters of administration.
Section 25 of the Administration Act 1903 sets out who is entitled to apply for a grant of letters of administration. An application can be made by or more of the persons entitled in distribution to the estate of the intestate. If there is no such person resident within the jurisdiction and fit to be trusted, or a person who is entitled fails to apply, the Court can grant administration to any other person even if they are a creditor. The persons who are entitled to inherit the estate of a person who has died without leaving a will are set out in the State rules if intestacy. Section 25 of the Act sets out who will be entitled to inherit in certain circumstances. Hence, the application is usually made by the next of kin.
A de facto partner of a person who dies is defined in Section 13A Interpretation Act 1984 as a person who has lived in a de facto relationship. Also, a de facto relationship is defined as a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship. It does not matter whether the persons are different sexes or the same sex or if either of the persons is legally married to someone else or in another de facto relationship. The following factors are indicators of whether a de facto relationship exists but is not essential.
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 in accordance with the intestacy rules discussed below.
The authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. Also, this will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and 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.
Intestacy occurs frequently in Australia. In fact, government statistics reveal that in 1994, over 10% of applications for grants in WA were 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 and assumes that these are the people that the deceased would most want to benefit. Additionally, the rules make assumptions about who the deceased is closest to. Moreover, the rules do not therefore take account of individual circumstances. Thus, the rules are designed to act as a safety net. As a result, it protects those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
Where the deceased died on or after 30 March 2022
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed.
In WA, the rules are set out in Sections 14 and 15 of the Administration Act 1903.
As regards the other 1/2:
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 aims to help individuals understand letters of administration in WA.
Call us on 1300 728 200 to discuss your situation with one of our consultants.
