Letters of Administration in Victoria: A Practical Guide

Probate versus letters of administration

The two grants confer similar powers over the estate, but arise in different circumstances. Probate is granted to an executor named in a valid will. Letters of administration are granted where there is no will (intestacy), where the will does not appoint an executor, or where the named executor has died, is unwilling to act, or cannot be located. Where there is a will but no acting executor, the grant is called letters of administration with the will annexed.

Who can apply on intestacy

The Administration and Probate Act 1958 (Vic) sets out an order of priority for who is entitled to apply, generally beginning with the deceased's spouse or domestic partner, then children, then more distant relatives. A person with a higher priority who does not wish to apply may renounce; where no relative applies, the Court may grant administration to a creditor or, in the last instance, to State Trustees.

Distribution under the intestacy rules

On intestacy, the estate is distributed according to Part IA of the Administration and Probate Act 1958 (Vic). The precise entitlement depends on who survives the deceased — a surviving partner alone; a surviving partner and children of that relationship; a surviving partner and children of a prior relationship; children only; or more distant relatives. The scheme includes a preferential legacy for the surviving partner and, where children of a prior relationship survive, a statutory formula for dividing the residue.

These outcomes rarely mirror what the deceased would have chosen themselves, which is why obtaining even a short professionally prepared will avoids many of the disputes that follow intestacy — see our wills and estate planning practice.

The application

The application is made to the Probate Office of the Supreme Court and, like probate, is preceded by an online notice of intention to apply. Because there is no will, the applicant must also file evidence of the deceased's family — usually an affidavit of kinship — establishing who is entitled to the estate on intestacy. Where a partner and children survive, or where a de facto relationship must be proved, the evidentiary burden is higher.

Administering the estate

Once appointed, the administrator has broadly the same duties as an executor: to collect assets, pay debts and distribute in accordance with the intestacy rules. The six-month claim period under Part IV of the Act applies equally, and the administrator should not distribute during that period without advice if a claim is foreshadowed.

Common issues

• Disputes between children of a prior relationship and a surviving partner over the statutory formula.
• De facto or same-sex partnerships that require additional evidence to establish.
• Missing beneficiaries whose whereabouts are unknown.
• Small estates where the cost of a formal grant is disproportionate to the assets involved.
• Deceased persons who lived overseas but held Victorian assets.

How Hanlons can help

We prepare Victorian applications for letters of administration (with and without the will annexed), the affidavits of kinship the Court will require, and advise administrators on their duties and on the intestacy distribution scheme. For our full estate administration practice see probate and deceased estates; for planning that avoids intestacy in future see wills and estate planning; and for the statutory framework see our guide to the Administration and Probate Act.