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Letters of Administration - Unusual Situations (WA)

When a person dies without a will setting out what they would like to happen with their estate, the Supreme Court of Western Australia must grant Letters of Administration to an entitled individual to collect and distribute the estate assets. The Administration Act 1903 authorises the court to grant administration to any person aged over 18 who has an interest in the estate and is entitled to distribution. Generally, the person with the greatest interest in the estate will make the application. But what happens if the only person entitled to obtain a Grant of Letters of Administration is a minor or a person who does not live in Western Australia? This article outlines how letters of administration are granted in these situations.

Letters of Administration durante minore aetate

The court will not grant Letters of Administration to a minor. In the circumstance where a person dies intestate and the only person entitled to a grant is a minor, the court may grant Letters of Administration to their legal guardian. This grant will be limited to the period until the minor turns 18.

Pursuant to Section 26 of the WA Non-Contentious Probate Rules 1967, the Grant will be made to a minor’s guardian for the benefit of the minor only, and it may be subject to conditions if the court believes this is necessary.

The persons who can apply for this application as guardians of minors include:

  1. The minor beneficiary’s legal guardian;
  2. The minor beneficiary’s testamentary guardian (the person named in a deceased’s parents will as a guardian);
  3. An elected guardian. A minor who is older than 14 can elect a guardian of their choice for the purposes of the application; or
  4. The guardian ad litem of the minor. A guardian ad litem is a guardian appointed by the court for the purposes of obtaining a grant. A guardian ad litem is appointed in a separate proceeding that has to be initiated in court by the person intending to be appointed guardian.

The process and documents required to obtained Letters of Administration durante minore aetate are the same as a standard application for Letters of Administration, with the additional requirement of an Administration Bond which is addressed below.

Letters of Administration durante absentia

The Supreme Court of Western Australia can refuse to grant Letters of Administration to a person outside of the jurisdiction (Western Australia). If a person entitled to administration is outside of Western Australia, the Act provides for two separate procedures.

Grant to the adminstrator’s attorney

Where a Grant has not yet been obtained, Letters of Administration can be granted to a person appointed by the person entitled to the grant, pursuant to a power of attorney. The person entitled must appoint someone in the jurisdiction to act on their behalf to obtain a Grant of Letters of Administration and administer the estate while they are outside of the jurisdiction.

This Grant will be limited until the person entitled to the Grant enters the jurisdiction and can then apply for an unlimited grant. Despite the Grant being limited, this does not impact the nominated Attorney’s ability to administer the estate, and they can act as if they were the person entitled to administration.

Special Grants during periods of non-residence

Where a Grant has already been made to the person entitled to administration, and it is then proven that the administrator is residing out of the jurisdiction and this is impacting the distribution of the estate to beneficiaries or causing the estate loss, a person interested in the estate can apply for a special grant of letters of administration until that administrator returns to the jurisdiction.

Consent of all beneficiaries entitled to make an application of letters of administration must be provided to the court as part of the application for letters of administration durante absentia. If it is the case that there is a beneficiary entitled to the estate living in the jurisdiction, the court will most likely not grant letters of administration of an attorney of a person outside the jurisdiction (even if that person outside the jurisdiction is the priority beneficiary), but instead will grant administration to the beneficiary/person entitled to administration in the state that resides in Western Australia.

Administration Bonds are also required where the administrator (or any beneficiary) resides outside the jurisdiction. However, if there is an attorney acting as administrator inside the jurisdiction on behalf of the non-resident, this forgoes the requirement for a surety guarantee.

In actual practice, the court has recently shown it is sometimes willing to grant administration to a person who is resident outside the jurisdiction, particularly those who reside in another state in Australia, despite the strict wording of the Act.  However, it is important to understand that ultimately it is in the court’s power to refuse administration to a person who is resident outside the jurisdiction.

Administration Bonds

An Administration Bond is where a guarantee by way of surety is provided by two residents in Western Australia, for an amount equal to the gross value of the estate in Western Australia, or for such an amount the registrar orders. An applicant themselves cannot provide the surety; nor can a legal practitioner provide this for their client.

Persons providing the surety must swear an affidavit establishing they have financial means to guarantee compensation to the estate, in the event of a loss caused by the administrator. The individual providing the surety ensures that the administrator obtaining a Grant of Letters of Administration acts properly in their role.

It can be difficult to obtain the sureties required in the above applications, because of the costs involved. Applicants can apply for the surety to be dispensed with by providing reasons why it should be dispensed with. It is easier to have the requirement dispensed with where all beneficiaries in the estate are over 18.

Ultimately, the discretion of whether to dispense with the requirement of a surety is with the Registrar and for them to be comfortable to dispense with the surety, the Registrar needs to form the view there is no risk to the estate.

An alternative to having to obtain a surety where an infant is a beneficiary, or where the administrator/beneficiaries are outside the jurisdiction, is to appoint the Public Trustee in the role of administrator, as they will not be required to provide a surety guarantee.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Madeleine Purcell - Associate - Melbourne

This article was written by Madeleine Purcell - Associate - Melbourne

Madeleine Purcell graduated from Deakin University in 2017 with a Bachelor of Laws (Honours) and a Bachelor of Arts majoring in psychology. She completed her Graduate Diploma of Legal Practice at the College of Law and was admitted to practice at the Supreme Court of Victoria in April 2018. Madeleine has primarily worked in the areas of wills & estates...

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