Applying for Letters of Administration in Tasmania
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. In Tasmania, the applicable laws are the Administration and Probate Act 1935 and the Supreme Court Rules 2000 (Tasmania). This kit will state the law as it applies in Tasmania. If the deceased was domiciled in Tasmania and the assets are in Tasmania then the law of Tasmania will be the applicable law.
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of Tasmania (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 6 working days 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 3 working days.
When intestacy occurs
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?
INTESTATE ACT 2010
Where a person has died wholly intestate, the priority of right to a grant of administration is to be as follows:
(a) a spouse of the deceased;
(b) children of the deceased;
(c) the issue of any child of the deceased, if –
(i) the child of the deceased has failed to survive the deceased person; and
(ii) the issue is entitled to a share of the deceased person’s estate taking per stirpes;
(d) parents of the deceased;
(e) brothers and sisters of the deceased, whether or not they share one or both parents;
(f) the issue of any brother or sister of the deceased, if –
(i) the brother or sister has failed to survive the deceased person; and
(ii) the issue is entitled to a share of the deceased person’s estate taking per stirpes;
(g) grandparents of the deceased;
(h) aunts and uncles of the deceased;
(i) the issue of any aunt or uncle of the deceased, if –
(i) the aunt or uncle has failed to survive the deceased person; and
(ii) the issue is entitled to a share of the deceased person’s estate taking per stirpes;
(j) the State;
(k) creditors of the deceased.
Definition of a de facto relationship
Please note that references to a spouse include a partner or de facto spouse as defined by The Family Law Act 1975:
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that 6% of the matters dealt with by the probate registry of the Supreme Court in Tasmania in 2003 involved applications made in circumstances of intestacy. The aim of the legislation in each state is to 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 Tasmania, the rules are set out in the Intestacy Act 2010.
Spouse's entitlement where there are no issue
If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate.
Spouse's entitlement where issue are also issue of the spouse
If an intestate leaves a spouse and issue and the issue are all also issue of the spouse, the spouse is entitled to the whole of the intestate estate.
Spouse's entitlement where at least one issue is not issue of the spouse
If an intestate leaves a spouse and any issue who are not issue of the spouse, the spouse is entitled to –
(a) the intestate's personal effects; and
(b) a statutory legacy ($350,000 indexed to CPI); and
(c) one-half of the remainder (if any) of the intestate estate.
Spouse's right of election
(1) A spouse is entitled to elect to acquire property from an intestate estate.
(2) A spouse's election to acquire property from an intestate estate requires the Court's authorisation if –
(a) the property forms part of a larger aggregate; and
(b) the acquisition could substantially diminish the value of the remainder of the property or make the administration of the estate substantially more difficult. Note: For example –
(a) the acquisition of a single item from a collection of items might substantially diminish the value of the remainder of the collection or make it substantially more difficult to dispose of the remainder of the collection; or
(b) the acquisition of the farmhouse from a farming property might substantially diminish the value of the remainder of the farming property or make it substantially more difficult to dispose of.
Entitlement of children
(1) If an intestate leaves no spouse but leaves issue, the intestate's children are entitled to the whole of the intestate estate.
(2) If –
(a) an intestate leaves –
(i) a spouse or spouses; and
(ii) any issue who are not also issue of a surviving spouse; and
(b) a part of the estate remains after satisfying the spouse's entitlement, or the spouses' entitlements –
the intestate's children are entitled to the remaining part of the intestate estate.
(3) If no child predeceased the intestate leaving issue who survived the intestate, then –
(a) if there is only one surviving child, the entitlement vests in the child; or
(b) if there are 2 or more surviving children, the entitlement vests in them in equal shares.
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