What Is A Letter Of Administration In WA?
In Western Australia, a Letter of Administration is a court order that confirms that a specific person is acting on behalf of a deceased estate. The Probate Office of the Supreme Court of WA will only issue a grant for the estate of someone who was domiciled in WA before their death or who owned real property in the state. A Letter of Administration is warranted when someone has passed away intestate (without a will), partially intestate or where there is no appointed, willing or competent executor. This article examines the purpose of a Letter of Administration and pinpoints the circumstances when the grant is required.
What Is A Letter Of Administration?
The Supreme Court issues a Letter of Administration in accordance with the Administration Act 1903 to confirm an administrator’s authority over an intestate deceased estate. There are two kinds of Letters that are granted in WA: the Letters of Administration and the Letters of Administration With The Will Annexed. As the titles suggest, the difference between the grants lies in whether the deceased has left a will. While the existence of a will typically means that there is an appointed executor able to apply for a Grant of Probate, in the event that the testator has appointed no executor, or where the named executor/s are unavailable, the correct grant is a Letters of Administration With The Will Annexed. This document is usually needed before financial institutions will release funds and government departments will update information about the deceased.
Who Is Eligible To Apply For A Letter Of Administration?
The list of people who can apply for a Letter of Administration in WA is restricted to the potential beneficiaries of the estate, either because of the terms of the will or according to intestacy law. Typically the court grants a Letter of Administration to the closest relative of the deceased who volunteers to take the role, usually the spouse or de facto partner or an adult child of the deceased.
Anyone applying for the grant must gain the written consent of every adult beneficiary of the estate or provide evidence to the court that the applicant has served each beneficiary with notice of his or her intention to apply. If no beneficiary is willing or able to apply for a grant, any suitable other person can apply: in the event that the estate has debts, even a creditor can apply for the role. If any of the beneficiaries are under the age of eighteen, the court may require a surety guarantee. The court may choose to appoint the Public Trustee to administer the estate if there is no better alternative.
How To Apply
In WA, there is no need to publish a Notice of Intention to Apply. However, a prospective administrator must wait 14 days after the death before applying for a Letter of Administration. An application for a Letter of Administration consists of several documents, including:
- A motion for a Letter of Administration
- Affidavit of administrator
- Statement of Assets and Liabilities
- Will if one exists
- Original death certificate
It is important that the affidavit is drafted carefully, as the court may reject an affidavit that does not comply with the regulatory guidelines. An affidavit must be typed using black ink and at least 12 point font on white A4 printer paper, set out in numbered paragraphs, with each page of the document numbered and stapled together at the top left corner. The applicant must swear the affidavit and sign in the presence of an authorised witness such as a public notary, Justice of the Peace or practising lawyer.
What Are The Differences Between An Administrator And An Executor?
It would seem like there is little difference between an administrator and an executor, as they both collect together the assets and liabilities of the estate, discharge debts, file tax returns and establish discretionary trusts. Both personal representatives must protect the estate from loss and damage, and defend the estate from legal challenge and contest. There is, however, an important difference between a testator-selected executor and a court-appointed administrator, in that when there is no will, the administrator cannot take any account of the deceased’s wishes for their estate. Instead, they must manage and distribute the estate according to the succession rules in the Administration Act 1903. In this circumstance, the deceased will not be able to make any charitable bequests or make gifts to friends.
It can be difficult to select which type of probate grant is appropriate given the particular circumstances of the case. The contested wills team at Armstrong Legal can help you make an application for a Letter of Administration, and support you with anything you need as you administer a deceased estate. For experienced and friendly advice, please call 1300 038 223 or contact our office to make an appointment.