Losing a loved one is a very challenging and emotional time. If the deceased person did not leave a Will, you may be wondering where to start.
When a person passes away and leaves a Will, the Will usually states how their assets should be distributed. However, when a person passes away without a Will, they are said to have died ‘intestate’. In this situation the laws of intestacy must be followed in order to deal with the deceased’s assets (called their ‘estate’).
What do the laws of intestacy say?
The laws of intestacy are set out in the Administration and Probate Act 1958 (Vic).
The law provides that a deceased person’s estate must be distributed to their closest next-of-kin. It also provides criteria to determine exactly who is the closest next-of-kin and sets out how the deceased’s estate must be distributed.
The most common intestacy situations are as follows:
A domestic partner has the same rights and entitlements as a legal spouse, provided the domestic partner meets the legal definition under the Administration and Probate Act 1958 (Vic).
Under the law, it is possible to have more than one legal spouse, for example, a domestic partner while still being legally married to their previous spouse. If the deceased left multiple partners, then there are specific guidelines setting out how the estate should be distributed between those partners.
If the deceased died without any partner, children, grandchildren, parents, siblings, or nieces and nephews, their estate will pass (in order of priority) to any surviving grandparents, then aunts and uncles, and then first cousins. If a person passes away without leaving any first cousins or closer family, then their estate will pass to the Crown.
Do I need a Grant of Letters of Administration?
A Grant of Letters of Administration is a formal document issued by the Supreme Court of Victoria. It gives authority to an Administrator to deal with the deceased’s estate.
A Grant of Letters of Administration will be needed if:
- The deceased owned real estate in their sole name or as a tenant in common.
- A bank or other institution in which the deceased held assets have stated that they require a Grant of Letters of Administration before they will release the assets. Each institution has its own rules and thresholds, which are often determined by the value of the asset. The higher the value of the asset, the more likely they are to require a Grant of Letters of Administration.
A Grant of Letters of Administration may not be needed if:
- The deceased’s assets are all jointly owned. In this situation, the surviving joint holder may typically deal with the bank or other institution directly and provide the Death Certificate to have the accounts transferred solely to the surviving joint holder. This includes where the deceased owned real estate as a joint proprietor, which will involve an application by the surviving proprietor to have the deceased’s name removed from the Certificate of Title.
- The value of the deceased’s assets are small and the banks and other institutions in which the deceased held assets have stated that they will not require a Grant of Letters of Administration before they will release the assets.
You can read more about Grants of Letters of Administration and whether you may need this on the Supreme Court of Victoria's website.
How do I apply for a Grant of Letters of Administration?
An application for a Grant of Letters of Administration is typically made by the person with the greatest entitlement to the estate (as set out above). The applicant is known as ‘the administrator’. The application is made to the Supreme Court of Victoria. This process is typically undertaken by a lawyer on your behalf, due to the complexities involved in managing a deceased estate.
Once a Grant of Letters of Administration is made, it can be provided to the asset holding institutions so that the deceased’s assets can be transferred to the estate. The administrator’s role is to collect all of the deceased’s assets, pay all of their debts and then distribute the assets to their closest next-of-kin (as set out above).
For more information about the procedure on obtaining a Grant, see our article What is the procedure to obtain a Grant of Representation?
How can Sharrock Pitman Legal help?
If you have recently lost a loved one, our Accredited Specialist Wills & Estates team can assist you to administer the estate and obtain a Grant of Letters of Administration if necessary. If you wish to have a Will prepared for yourself to avoid the complexities of passing away without a Will, our team can also assist you with this. Please feel free to contact us on 1300 205 506 or email firstname.lastname@example.org.
For further information contact
Alice Land is a lawyer at Sharrock Pitman Legal. She practises in our Wills and Estates, Not-for-Profit and Property Law teams. For further information, please contact Alice directly on (03) 8561 3311.