My loved one has passed without a valid Will in place – What should I do?
Without a valid Will in place things can get messy.
Dealing with the death of someone close is an incredibly emotional and difficult time. Often there is a lot of uncertainty, stress and confusion about what to do next.
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 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.
Take action today:
CPC Lawyers understand the difficulty involved in proceeding with further arrangements whilst grieving the death of a loved one. Our experienced probate solicitors are here to assist and guide you through the next steps with ease.
Contact our office on (08) 7325 0219 today to book an appointment.