Letters of Administration

If a family member has passed away leaving assets but no valid Will, there may be complex legal and administrative issues to address. At Websters Lawyers, we can guide you through the process of dealing with their estate efficiently and in compliance with the law.

A person who dies without a valid Will is said to have died intestate. In South Australia, the rules for distributing an intestate estate are governed by the Succession Act 2023, which sets out how the estate is to be distributed among surviving family members. Generally, the person who is likely to be the main beneficiary of the estate, called the Administrator, will apply to the Supreme Court for a Grant of Letters of Administration. Until such a grant is made, no one has the legal authority to deal with the assets of the estate.

How Is an Intestate Estate Distributed?

The Succession Act 2023 provides clear rules for distributing an intestate estate depending on the surviving family members:

• If there is a surviving spouse or domestic partner but no children, the spouse or domestic partner is entitled to the whole estate.
• If there is a surviving spouse or domestic partner and children, and the estate is worth less than $120,000 (the preferential legacy), the spouse or domestic partner receives the entire estate.
• If the estate exceeds $120,000, the spouse or domestic partner receives $120,000 plus half of the remaining balance, with the children sharing the other half equally.
• If there is no spouse or domestic partner, the children inherit the estate equally.
• If there are no children, more distant relatives (up to grandchildren of relatives of the fourth degree) may inherit before the estate passes to the Crown.

Where both a spouse and a domestic partner survive (e.g., in cases of separation without divorce), specific advice may be required as this can complicate the distribution process.

An Administrator may apply to the Court for approval to distribute an intestate estate in accordance with an agreement between beneficiaries, even if it deviates from intestacy rules.

Exclusion of Spouses or Domestic Partners

A spouse or domestic partner who was a party to a prescribed agreement or order (such as a binding financial agreement under the Family Law Act 1975 or an agreement under the Domestic Partners Property Act 1996) is excluded from inheriting under intestacy rules. This ensures that separated spouses or domestic partners who have already resolved their financial matters are not entitled to inherit.

Small Estates and Payment Without Probate

For small estates valued at $100,000 or less, the Public Trustee can administer the estate under a deemed grant model, simplifying the process and reducing costs.

Additionally, up to $15,000 in money or personal property can now be transferred directly to a surviving spouse, domestic partner, or child without requiring probate or administration. This allows for faster access to funds for immediate needs.

The Administrator’s Role

The role of an Administrator is similar to the duties of an Executor. The Administrator must:

1. Identify and secure all assets of the deceased, including property, bank accounts, and personal belongings.
2. Pay all debts and liabilities of the deceased, including funeral expenses and taxes.
3. Distribute the estate in accordance with the rules of intestacy set out in the Succession Act 2023.

The Administrator must also provide a statement and account of the administration of the estate to beneficiaries and, if required, to the Public Trustee.

The Distribution Rules for an Administrator differ from those of an Executor:

• Executor: Distributes the estate according to the terms of the will.
• Administrator: Distributes the estate according to the rules of intestacy which includes:
  • The preferential legacy for a surviving spouse or domestic partner ($120,000).
  • Distribution to children, grandchildren, or other relatives in accordance with sections 105–109.

Letters of Administration with a Will Annexed

In some cases, there may be a Will, but it cannot be fully executed because:

• The named Executor has died or is unwilling or unable to act; or
• The Will does not appoint an Executor.

In such cases, it may be necessary to apply for Letters of Administration with the Will Annexed. This process allows someone else (usually a beneficiary) to administer the estate in accordance with the terms of the Will.

How We Can Help

At Websters Lawyers, we have experienced solicitors who can assist you with:

• Applying for Letters of Administration if you are entitled to administer an intestate estate.
• Advising on your rights and obligations as an Administrator.
• Resolving disputes between beneficiaries or potential claimants.
• Assisting with complex situations, such as where there is both a spouse and a domestic partner or where there are disputes over entitlements.

We can guide you through every step of the process to ensure that all legal obligations are met and that the estate is administered efficiently and lawfully.

Free Initial Consultation

We offer a free initial consultation during which we can explain your options and provide an estimate of costs.

Call us now on (08) 8231 1363 or click here to make an enquiry by email. Let Websters Lawyers help you navigate this challenging time with expert advice and practical solutions.