A Grant of Letters of Administration is a Court document appointing a person to administer a Deceased’s estate where there is no valid Will or there was a Will which does not appoint any executors. Banks, Landgate, share registries and other businesses may refuse to deal with you until the Court has made the Grant of Letters of Administration.
Laird Lawyers are Experienced in obtaining various different Grants of Letters of Administration, with and without a Will annexed, for a fixed fee of $770 (incl. GST) plus the Court filing fee, which is currently $370.
1. When is Letters of Administration Necessary?
Letters of administration is required when one of the requirements for a Grant of Probate has not been satisfied. The most common is where a person died without making a Will but a will may not be valid if:
(a) the person marries or divorces after making the will (unless the will states it was made in contemplation of marriage or divorce);
(b) the person did not have testamentary capacity at the time of making the will (see our article on testamentary capacity); or
(c) the will is so damaged that it cannot be read.
In other circumstances there is a Will but no executor named, willing or able to obtain probate, such as where:
(a) there was no executor named in an otherwise valid will;
(b) the named executors are under age or do not have capacity;
(c) the executors and substitutes have all died before the deceased; and
(d) none of the executors are within WA.
The Administration Act 1903 sets out who may be an Administrator of the estate, who is entitled to distributions from the estate and the portions of the estate to which people may be entitled, discussed below.
2. Who is Entitled to a Distribution from the Estate?
Section 14 of the Administration Act 1903 provides a table detailing the persons who are entitled to share in the estate in particular circumstances. Below is a simple diagram of those who are entitled to a share according to section 14.
A spouse includes a husband/wife, de facto partner and same sex partner.
The factors considered in determining if a person is a de facto is given by section 13A(2) of the Interpretation Act, which includes:
(a) the length of the relationship between them;
(b) the nature and extent of common residence;
(c) whether there is, or has been, a sexual relationship between them;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property (including property they own individually);
(f) the degree of mutual commitment by them to a shared life;
(g) whether they care for and support children;
(h) the reputation, and public aspects, of the relationship between them.
There is no one determining factor as the Court has to consider the entire relationship, the composite relationship and not just individual factors. It has been said that a de facto relationship is one where they live as if they were married but without the celebration. It is complex but a de facto is different from a boyfriend/girlfriend, just because they have a sexual relationship does not mean they are de factos. Also, just because friends live together does not mean they have the romantic commitment to each other required for de facto couples.
If a person dies with a husband/wife and a de facto partner, then:
(a) if the deceased and de facto lived as partners for 2 years immediately before death and not as the partner of the husband/wife, the husband/wife and de facto evenly split the spouse entitlement; or
(b) if the deceased and de facto lived as partners for 5 years immediately before death and not as the partner of the husband/wife, the de facto receives the entire spouse entitlement.
B. Children (Adopted and Step Children)
The Administration Act 1903 places legitimate and illegitimate children in the same position.
Under the Adoption Act 1994, an adopted child is taken to be the child of the adopting parent and not the child of the natural parents. Unfortunately, step-children, unless adopted, are not included in the definition of children and no provision is made for them on intestacy. There are limited circumstances in which a step-child may be able to make a Family Provision Claim, which is explored in our article on Family Provision Claims and Children.
In the case of children from fertilisation procedures, the donor is not the parent. The mother and her partner are the parents.
C. Grandchildren, Nieces & Nephews
Grandchildren, nieces and nephews are generally not entitled to receive a distribution from the deceased’s estate except in circumstances where their parent (ie the child or sibling of the deceased) died before the deceased. In these circumstances, only the child of the deceased sibling or child can receive an inheritance and the children of surviving siblings or children do not receive an inheritance.
D. Relatives by Marriage
The Administration Act 1903 does not make provision for relatives by marriage, such as step siblings. Therefore, when referring to relatives such as aunts and uncles, it must be your parent’s sibling not a brother or sister in-law.
3. What are the Respective Entitlements?
Section 14 of the Administration Act 1903 has a set formula for determining the amount a relative is entitled to receive from a deceased estate. The most common scenarios are set out below. It is important to note that a Deed of Family arrangement can be used to formalise a different distribution, such as give affect to deceased’s wishes but please note there may be tax implications such as CGT for changing land entitlements.
A. Spouse and Children/Grandchildren
The Spouse will be entitled to all household chattels, the first $50,000 and a third of the balance (half if there is only one child). The children receive in equal shares two thirds (half if there is only one child) of the balance. If a child died before the deceased but left grandchildren, those grandchildren take their parents share equally but the grandchildren from surviving children of the deceased receive nothing.
For example, of a $150,000 estate:
(a) the spouse receives all household chattels and either, $100,000 if there is only one child (first $50,000 + half the balance) or $83,300 if there are multiple children (first $50,000 + third the balance); and
(b) the children share equally $50,000 if there is only one child (half the balance) or $66,700 if there are multiple children (third the balance). If there were 4 surviving children and 1 predeceased but left 2 children (grandchildren of the deceased), each child receives $13,340 (a fifth of the balance) and the 2 grandchildren receive $6,670 (their deceased parents share).
B. Children/Grandchildren but no Spouse
The estate is split equally between the children. Where one child died before the deceased but left children (grandchildren), those grandchildren equally split their deceased parents share and the grandchildren of surviving children receive nothing.
C. Spouse with no children
If the deceased left no children, parents, siblings nieces or nephews, or the estate is worth less than $75,000, then everything goes to the spouse. Otherwise, the Spouse receives all household chattels, the first $75,000 and half of the balance. Of the other half, the parents (equally if both survive the deceased) are entitled to the next $6,000 and half of the rest goes to the parents and the other half is split between the siblings. Note that if a sibling does not survive the deceased but left children (nieces/nephews of the deceased), those children take their parents share equally.
For example, $100,000 estate where a spouse, parent(s) and siblings survive, is split:
(a) to the spouse: $87,500 (being $75,000 + half of the balance) and household furniture;
(b) to the parents: $9,250 (being $6,000 + half the rest of $6,500); and
(c) to the siblings (or child of deceased sibling): $3,250 (half the rest of $6,500) split equally.
If neither parents survived then that share goes to the siblings.
D. No Spouse, No Children & No Grandchildren
The formula gets messy at this level and a family tree is needed. We will advise you depending on your particular circumstances but the general priorities is:
(a) Parents and siblings;
(c) Uncles and aunts, or children of an uncle or aunt who died before the deceased.
If none of the above survive, the estate passes to the Crown.
4. Who makes the Application for Letters of Administration?
The case of Letters of Administration is more complicated as there is no named executor. Persons who may make an application for a Grant of Letter of Administration is generally one or more persons entitled to a distribution from the estate residing in Western Australia.
Where more than one person is entitled to apply for a Grant of Letters of Administration, all those persons will need to jointly apply or, usually the more practical option, one person applies and all others entitled sign a consent, like a renunciation for a Grant of Probate.
In certain cases, the Court may require sureties to guarantee that they will make good any loss from the Administrator’s actions.
5. What documents do you need?
(a) The Original Will (if applicable)– this needs to be signed by the administrators and witness to the Affidavit and lodged to the Court for inspection;
(b) The Original Death Certificate
(c) Motion to the Court – This is the formal application to the Court seeking the Court make a Grant of Probate of the Deceased’s Will.
(d) An Affidavit in support of the Motion – There is a particular form this affidavit is required to be in and must contain particular statements.
(e) An Asset and Liability Statement of the Deceased’s estate, to be attached to the Affidavit.
(f) Consents of those Renouncing – A person entitled to be an Administrator may choose not to take their position, in which case their consent to the other administrators applying will need to be attached to the Affidavit.
(g) Sureties and Guarantees (if requested)
(h) An Affidavit of Due Execution of the Will - Where there are questions over the execution of the Will, one of the pages is not signed or there are marks suggesting later amendments or revocation, we may be required to prepare an Affidavit of Due Execution for a witness to the Will to execute. Our fixed fee will be $150 + GST for this document.