Applying for Letters of Administration in South Australia

Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. In South Australia, the applicable laws are the Administration and Probate Act 1919 and the Supreme Court Civil Rules 2006 (SA). This kit will state the law as it applies in South Australia. If the deceased was domiciled in South Australia and the assets are in South Australia then the law of South Australia will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of South Australia. A grant of Letters of Administration will generally be issued by the Court within 1 week of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 1-2 weeks.

When does intestacy occur?

When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed 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, failed to make a valid will or 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.

The distribution of an intestate estate

State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal 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 is a result of common law precedents. The “common law” is established over time by Judges who make decisions on points of law not covered by statute which are binding on lower courts in the same jurisdiction. Common law has established that the next of kin can apply for letters of administration, on the basis that they will inherit in accordance with the state laws of intestacy which determine who will inherit a deceased estate in the event that the deceased did not leave behind a will. This generally means that the application can be made by a spouse or de facto partner, or child of the deceased. Under the South Australian legislation a married spouse is known as a lawful spouse, and a de facto partner is known as a putative spouse. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.

Definition of a De facto relationship

A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.

Couples who are same sex or opposite sex are included in the definition of de facto relationship under Australian law. A couple by marriage or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married they can still be considered to be in a de facto relationship with another person they are not married to.

A person would not have a de facto partner unless they have lived together as a couple for two years without separation. Therefore, the length of time to be considered de facto is two years. However, if there are children or substantial contributions to joint property, exceptions are made to this rule.

De facto relationships are governed under the Family Law Act 1975. This means that your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975. De facto relationships in Western Australia are governed by the Family Law Act 1997 (WA), however.

The purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. Government statistics reveal that some 6 -8% of the matters dealt with by the probate registry of the Supreme Court of South Australia involve applications made in circumstances of intestacy. The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and 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. The rules do not therefore take account of individual circumstances. The rules are designed to 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 South Australia, the rules are set out in Sections 72A – 72O of the Administration and Probate Act 1919. 

A. 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 de facto.

B. When there are no children but a surviving spouse AND domestic partner, then they will take equal shares of the estate.

C. If the deceased had children and a surviving spouse, 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

If the estate is valued less than $100,000, the spouse will get the remainder of the estate. If the estate is valued at over $100,000, the spouse will get $100,000 plus one half of the balance. The remaining half will be divided between the children, or in the event of their death, their share will be divided amongst their children.

D. If the deceased had children and a domestic partner, and if the domestic partner had lived with the deceased continuously for over 5 years, the putative spouse would inherit in the same way as a lawful spouse as above. If the domestic relationship was under 5 years, the children would inherit but if the children were the children both of the deceased and the putative spouse then the domestic partner would inherit the first $100,000 and one half of the remainder of the estate as in example B above.

E. If the deceased left children, a spouse AND a domestic partner, then the partner’s share (meaning the first $100,000 plus one half of the reminder of the estate) would be divided between the lawful spouse and putative spouse.

E. 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).

F. 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)

• brothers and sisters (either whole or half blood)

• Nephews and nieces

• grandparents

If none of the above exist, then the estate will pass to the Crown.

Personal applications for Letters of Administration through AussieLegal - fixed price $1,250.00