Under Wills & Probate law, everything owned by a person who has died is known as their ‘estate’.
The estate doesn’t just include property, such as a home, but can be made up of money in a bank, shares and personal possessions such cars or jewellery.
The estate of the person who has died is usually passed to surviving relatives and friends, according to instructions in the will.
Usually, the person(s) named in someone’s will as an executor will be responsible for overseeing this process.
But what happens if there was a problem with the will, and there is no executor?
Using Letters of Administration
There could be any number of complications to the usual process, which leave the question of overseeing a will in the air. These include:
- If there is no will
- If the will was disputed and deemed invalid or fake
- If the named executors can’t take up their role (e.g. they have died)
- If the named executor(s) choose not to take up the role
Who Applies for Letters of Administration?
In Victoria, there are two main paths for letters of administration:
- “Letters of administration with the will annexed” are issued when there is a valid will but the executor cannot or will not apply for a probate grant. Generally, the document is made in favour of the persons with the greatest interest under the will
- The alternative case is the standard “letters of administration”. This is for cases where the deceased did not make a will (called ‘intestacy’), or the will they made was not valid. In most cases, a grant is made to the next of kin (e.g. the spouse or a child of the deceased).
Grants for Letters of Administration?
In cases where letters of administration are applicable, it is often important to seek a grant for the letters. This is because banks and financial institutions will only release the money or assets of a deceased person when they know they are dealing with someone who has legal authority.
Some organisations may release money without needing a grant if the amount is small and there are no other complications. For example, if the deceased’s assets are entirely held in a joint bank account, a death certificate may be enough for the monies to be transferred to the surviving joint holder.
However, for larger assets a grant is usually expected. For example, if an executor is required to prove title to assets, a grant will be necessary.
Complete Advice about Wills and Estates
If you are facing uncertain questions about a loved one’s will, our experts can help.
At Robert Wood and Associates, our lawyers have more than 36 years of experience with wills, probate, and all other matters related to estate law. We can assist you in every element of wills and estates, including making decisions about probates or challenging a will.
Call us on (03) 9762 3877 or contact us online.
