It is not mandatory that you make an application for Letters of Administration.
However, if your loved one owned real estate solely in their own name or as a “tenant in common” with another person(s) or if an asset holder (for instance, a bank) requires a grant of administration before they will release the deceased’s funds, then you will need to apply for Letters of Administration.
If you are granted Letters of Administration by the Court, then you are appointed “Administrator” of the deceased estate (as opposed to an Executor of the deceased estate had there been a valid Will).
Administration may be granted where there was no Will or where there was an informal Will or codicil (an amending document made later in time) that does not meet the requirements of a valid Will. For instance, the deceased may have appointed only one Executor, but that Executor has predeceased the deceased. In the absence of any substitute Executor named in the Will, Letters of Administration will need to be applied for, by the primary beneficiaries, with the will annexed.
If a grant of administration is applied for by only some of the persons within Australia who are entitled to administration, the application must, in relation to each person not applying, be supported by:
- the written consent of that person to the grant of administration to the applicant; or
- an affidavit as to service on that person of the applicant’s notice of intention to make such an application. The notice of intention must be served on the “affected person” not less than 14 days before the application for administration is applied for. To see a sample notice of intention click here.
The applicant for administration will need to put on an affidavit in support of the application to show that the deceased did not leave a de facto partner, otherwise it should be the de facto partner that makes the application.
You’ll find the team at Conditsis Lawyers is here to demystify your estate questions. Call us on (02) 4324 5688. Conditsis has office locations across NSW including the Central Coast, Sydney, Newcastle and Wollongong.
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