Letters of Administration and Intestacy Laws

Letters of Administration is an application usually made by the deceased's senior next of kin. When someone dies without leaving a Will, they are referred to as being "intestate" and the laws of intestacy apply to the distribution of their estate. 

Each state and territory in Australia has different laws of intestacy, so how the estate is distributed depends on where the estate is based, not necessarily where the deceased lived or died. 

Similarly to obtaining a Grant of Probate, you may be asked to obtain Letters of Administration in order to administer and distribute the deceased's estate. 

In these applications, generally the Supreme Court will need evidence and information to confirm your status as senior next of kin. This may be through the following:

1. Birth certificate/s to demonstrate your relationship to the deceased;
2. Affidavits from persons who can confirm your relationship with the deceased; 
3. Affidavits from persons who can confirm that the deceased was not in a de facto relationship within two (2) years before their date of death; and 
4. Death certificate/s of any people higher than you in the tiers of status as senior next of kin. 

In Victoria, the Supreme Court are very efficient with regards to their processing times. In our experience, if the documents submitted are all in order and correct, the Registrar makes the Grant of Letters of Administration within three (3) business days from filing. 

The reason for the fast timeframe is that the Court does not need to examine an original Will. 

There is a hierarchy of relationships and status in Victoria for next of kin under intestacy laws as follows: 

1. Spouse of the deceased / de facto partner of the deceased / registered and unregistered domestic partner of the deceased. 
2. Children of the deceased. 
3. Grandchildren of the deceased. 
4. Parents of the deceased. 
5. Siblings of the deceased. 
6. Nieces and nephews of the deceased. 
7. Grandparents of the deceased. 
8. Aunts and uncles of the deceased. 
9. Cousins of the deceased. 

Each level must be "crossed off" before the level below is applicable. 

The person who makes the application is referred to as the "Administrator" of the estate. 

There is a statutory legacy in Victoria under intestacy laws, which applies if the residuary estate of the deceased is over a certain amount (based on the year of their passing). For example, if the deceased died between 1 July 2024 – 30 June 2025, and if the residuary estate is below $559,660, then the spouse/de facto/domestic partner is the sole beneficiary of the estate. If the residuary estate is above this amount, then the children of the deceased will be entitled to part of the estate.  

In NSW, the following distributions are applicable under intestacy laws: 

1. Spouse / de facto 100% if the deceased left no children. 
2. Spouse / de facto 100% if the deceased left children with that same spouse / de facto. 
3. Spouse / de facto, but children with former spouse or de facto: then the latest partner receives personal effects from your estate plus a statutory legacy, and then half of the residuary estate, and the child/children are entitled to the other half of the residuary estate. 
4. No spouse / de facto, but deceased left children: children share equally. 
5. No spouse / de facto, no children: parents of the deceased equally. 

The information listed in this article is not intended to be legal advice. We strongly recommend that you contact our office and speak with a lawyer directly about your specific circumstances and making an application for letters of administration.