Letters of administration
Where there is no will, or a will is executed but does not appoint an executor, letters of administration must be obtained before the estate of the deceased may be collected and distributed. The procedure is similar to that required for obtaining a grant of probate. Where letters of administration are granted, the person that receives the grant is called the administrator. The authority of an administrator commences from the date of the grant, whereas the authority of an executor commences from the date of death. Until letters of administration are granted, the estate vests in the State Trustees (Administration and Probate Act 1958 (Vic) (‘A&P Act’) s 19). Once letters of administration are granted, the administrator’s duties are the same as those of an executor (A&P Act s 27).
A grant of representation (or simply ‘a grant’) means either a grant of probate or a grant of letters of administration.
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A grant is essential to enable the legal personal representative (LPR) (either the executor or administrator) to obtain the title to the deceased’s property and then to collect, administer and protect it for the benefit of those interested in the estate. These may be creditors, beneficiaries or next of kin. The production of the grant is the only way the LPR can prove title to the deceased’s assets.
For example, the deceased may have had a bank account, and banks will only allow an LPR to access a deceased’s account if they have received a grant. Similarly, Land Use Victoria (formerly known as the title’s office) will only allow the LPR to deal with the deceased’s real estate if they have received a grant.
A grant protects the LPR (and the beneficiaries) if a later will is found or if someone disputes the validity of the grant.
Also, the six-month limitation period referred to in section 99 of the A&P Act for making family provision claims (discussed further below) begins from the date of the grant, rather than the date of the deceased’s death. The limitation period cannot commence, and therefore expire, until the grant has been made. A grant therefore, has the benefit of removing any personal liability which an LPR may face where assets are distributed without a grant being obtained, and a successful application for further provision is brought.
Letters of administration
Chapter: 9.4: Estates
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 813
Next Section: Executors, administrators and trustees
