Applying for Letters of Administration in Victoria

Applicable Laws

Each State has its own laws governing the administration of the estate of an intestate person. In Victoria, the applicable laws are the Administration and Probate Act 1958 and the Supreme Court (Administration and Probate) Rules 2004 (VIC). This kit will state the law as it applies in Victoria. If the deceased was domiciled in Victoria and the assets are in Victoria then the law of Victoria will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of Victoria (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 5 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 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, known in Victoria as a domestic partner, or child of the deceased. 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 domestic partner

References in the legislation to the partner of the deceased include both a spouse and a domestic partner. A domestic partner of a person who dies is defined in section 3 Administration and Probate Act 1958 as a person, who though not married, was living with the deceased at the time of their death as a couple on a genuine domestic basis (irrespective of gender) and had either been living with the deceased in that way continuously for a period of at least 2 years immediately before the deceased’s death or is the other parent of a child of the deceased who was under 18 at the time of death. In determining whether persons were domestic partners of each other, the court can take into account all the circumstances of the relationship including the following matters referred to in section 275(2) of the Property Law Act 1958:

• the duration of the relationship

• the nature and extent of common residence

• whether or not a sexual relationship exists

• the degree of financial dependence or interdependence

• ownership, use and acquisition of property

• degree of mutual commitment to a shared life

• the care and support of children

• the performance of household duties

• the reputation and public aspects of the relationship

The role of the administrator

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 legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. 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 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 Victoria 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 Victoria, the rules are set out in the Administration and Probate Act 1958 and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.

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 their respective shares will depend on the duration of the domestic relationship. Please refer to the following table which explains the rules:

Length of time the DP lived with the deceased prior to death Spouse entitlement DP Entitlement

DP less than 4 yrs 2/3 1/3

DP 4 – 5 yrs 1/2 1/2

DP 5 – 6 yrs 1/3 2/3

DP over 6 yrs none all

NB. You will need to refer to the definition of a domestic partner explained in paragraph 6. If the deceased had lived with a partner for less than two years on a genuine domestic basis, they would not meet the definition of a domestic partner unless they had a child together. Please note that a partner in these circumstances may still have a family provision claim pursuant to section 91 Administration and Probate Act 1958. This is explained in more detail in paragraph 10 below.

C. If the deceased had a surviving spouse and children of that relationship, 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 interest plus a third of the balance. The remaining two thirds will be divided between the children or in the event of their death their share will be divided amongst their children.

[NB. The interest on the $100,000 is from the date of death to the date of payment]

If the deceased had a surviving spouse and children NOT of that relationship, the spouse would receive the personal chattels; 

AND

The 1st $451,909 and 50% of the balance with the remaining 50% amongst the children.

D. If the deceased had children and a domestic partner, and if the domestic partner had lived with the deceased continuously for over 2 years, the domestic partner would inherit in the same way as a surviving spouse as above. If the domestic relationship was under two years, the children would inherit but if the children were the children both of the deceased and the domestic partner then the domestic partner would inherit the first $100,000 and a third of the remainder of the estate as in example C above.

E. If the deceased left children, a spouse AND a domestic partner, then the partner’s share (meaning the first $100,000 plus interest plus a third of the reminder of the estate) would be divided between the spouse and domestic partner based on the duration of the domestic relationship prior to the death of the deceased as set out in the table in paragraph B above.

F. 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).

G. 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)

• Siblings - brothers and sisters (either whole or half blood)

• Nieces and nephews

• Grandparents

• Uncles and Aunts

• Cousins

The estate does not pass to the government unless there are no living relatives.

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