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My loved one has passed without a valid Will in place – What should I do?


Dealing with the death of someone close is incredibly emotional and difficult. Often there is a lot of uncertainty, stress and confusion about what to do next.


Without a valid Will in place, things can get messy.


If the deceased has passed intestate:

This is particularly the case if the deceased has passed intestate; meaning where there is no Will in place or where there is a Will that fails to effectively dispose of the estate in whole or in part.


In the absence of an appointed Executor

Administering a deceased estate can be complicated in the absence of an appointed Executor. Fortunately, there is a process you can undertake to begin collecting, distributing and sorting the assets of the estate. A grant of Letters of Administration is a court order granting an administrator authority to deal with the estate in such circumstances.


Should I be the one to apply for Letters of Administration?

Usually, the individual who is entitled to inherit all or most of the estate will be eligible to apply to the Supreme Court for the Letters of Administration grant. This is most commonly the spouse or domestic partner of the deceased, or the deceased’s child/children. It is important to note that an application can be made solely, or jointly between two or more eligible people.


Administrator vs Executor

The role of an administrator is similar to that of an Executor. The administrator of the intestate estate will need to pay any relevant debts of the deceased, and attend to distributing the assets in a timely manner.


How will I determine how the estate should be distributed?

Determining who gets what under an intestate estate can be tricky. However, direction is provided under the Administration and Probate Act 1919 (SA) (‘the Act’), and will depend on the deceased’s surviving relatives/next of kins. Under section 72G(1) of the Act, where the deceased does not have children, and is survived by a spouse or a domestic partner, such spouse or domestic partner will be entitled to the whole of estate.


What if the deceased has left surviving children?

This will also be the case if the deceased has left surviving children, yet the estate is worth less than the prescribed amount of $100,000.00. Where there are surviving children, and the estate exceeds the prescribed amount, the surviving spouse or domestic partner will be entitled to $100,000.00 and to one half of the remainder of the estate. The other remaining half is to be divided equally amongst the deceased’s surviving children. Accordingly, section 72G(c) of the Act provides that the deceased’s surviving children will be equally entitled to the whole of the estate where there is no surviving spouse or domestic partner.

Please note that some child/children that are considered the next of kin will require a legal personal representative or in some instances the Public Trustee to manage their affairs dependent on their age.


Let us help you with a grant of Letters of Administration

All factors considered, applying for a grant of Letters of Administration can be a confusing and complex process. If you are considering applying for the grant, it is important to seek the assistance of an experienced solicitor to ensure you have complied with both the application requirements and subsequent duties as Administrator.


Preparation is the key - Planning for your family’s future is an important legal task

Life can be unexpected, but you can have peace of mind for tomorrow by making wise choices today. Good Estate Planning and maintaining a carefully prepared, up-to-date Will legally recognises what you want to happen to your assets and affairs when you pass away. If you take the time now to make an effective legally binding Will and Testament, you can save your family not only stress but also money in what will undoubtedly be a difficult time for them.


Summary:

If you die without a valid Will then the intestacy laws will determine how your estate is to be distributed. Dependent upon the assets in your estate, it may be required to obtain a letter of administration.


CPC Lawyers act for the executor or administrator to make the probate or letters of administration application and obtain all the information required.


Contact us for more information or to arrange a consultation:

Call: (08) 7325 0219







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