Letter of Administration (ACT)

The Supreme Court of the Australian Capital Territory issues several different types of Letters of Administration, depending on the particular circumstances of the deceased. These grants are only issued for the estate of a deceased who was a resident of the ACT at the time of death, or who owned property in the territory. A Letter of Administration With Will authorises an administrator to manage the estate according to the wishes of the deceased, and the Letter of Administration – No Will permits a suitable person to administrate the estate of an intestate person according to succession law. This article defines the function of these different Letters of Administration and outlines the circumstances when these grants are warranted.

Duties

A Letter of Administration authorises the administrator to manage the estate according to either the wishes of the deceased (if there is a valid will) or according to the local intestacy legislation: the Administration and Probate Act 1929. The peripheral duties of the administrator are the same in both cases, as they take account of the liabilities of the deceased, file a final tax return on their behalf, and establish any discretionary trusts that are warranted. The administrator is also tasked with protecting the assets of the estate from damage or loss, and responsible for defending the estate in court against any legal challenge or contest.

When Is A Letter of Administration Required?

Unlike a Grant of Probate, which is required when an appointed executor seeks to administrate a valid will, a Letter of Administration in the ACT is needed when the deceased passes away without making a will (that is, when they are intestate), partially intestate, or when there is no executor willing to represent the estate. The Supreme Court will also issue a Reseal of a Letter of Administration that was granted in an interstate jurisdiction, which is needed when the deceased owned assets that are located in the ACT.

A Letter of Administration is a brief document that affirms that the appointed person is acting on behalf of the deceased estate. It is typically required before a government department will engage with an administrator in relation to the affairs of the deceased, and before a financial institution will release the deceased’s assets.

When Is A Letter of Administration Not Required?

In certain circumstances, it may not be necessary to acquire a Letter of Administration in order to administer a deceased estate. For instance, if the deceased was not the legal owner of any property, or was in possession of only a small amount of cash when they died, then it is probably not necessary to apply for a Letter of Administration. It is best to contact the asset holder (such as the bank) to check on the standard policy.  The same is true of assets that were jointly held with another person, including real estate and bank accounts, as the asset reverts to the surviving owner upon the death of the co-owner.

Who Is Eligible To Apply For A Letter of Administration?

In the ACT, the list of eligible people who can apply for a Letter of Administration is typically restricted to the next of kin of the deceased, usually their spouse or adult child. In the event that no close relative steps forward to apply, the court can appoint any other “appropriate” adult applicant, even a creditor of the deceased estate, or engage the Public Trustee and Guardian to act as administrator.

An administrator does not need to be a resident of the ACT, but it will be more difficult for someone living outside the jurisdiction to complete the responsibilities of the representative, as they will need to secure a local address for service and personally attend the Supreme Court to conduct an Affidavit of Search on the day they file their Letter of Administration.

Application

The two different types of Letters of Administration have similar application processes and slightly different versions of the following forms must be filed with the Supreme Court:

• Notice of Intention to Apply For Letters of Administration (published in an ACT daily newspaper not more than 3 months and not less than 14 days before an application is filed)
• Originating Application – Letters of Administration
• Grant of Letters of Administration in duplicate
• Affidavit of Applicant For Administration
• Affidavit of Search

A Grant of Letters of Administration with Will application must attach an original copy of the deceased will for validation. A grant is typically issued within a month, but there could be longer delays depending on the complexities of the deceased estate.

A solicitor can advise you on the type of probate grant that is required in your particular circumstances, or even whether one is necessary at all. The wills and estates team at Armstrong Legal can assist you with your application to the Supreme Court and answer any questions you might have about a Letter of Administration. Please phone 1300 038 223 or email our office to set up an appointment.