Before the Estate can be divided, Letters of Administration must first be granted to the next of kin of the deceased who is called the Administrator. The powers and duties of an Administrator are very similar to those of an Executor and will permit the Administrator to deal with the Estate.
There are strict rules about who can be the Administrator and these rules may vary from State to State.
However generally only the following people are eligible to apply and are usually eligible only in this order of priority:
a) The married partner, civil partner or unmarried partner of the deceased;
b) A child over 18 of the deceased, or the children’s guardian if the children are minors;
c) A grandchild over 18 of the deceased;
d) A parent;
e) A sibling;
f) A nephew or niece; and
g) Another relative or person appointed by a court.
If several people apply who have an equal right to do so, for example “all of the deceased’s children”, the Letters will normally be granted to the first person who applies. No one can be forced to accept the role of Administrator and it is entirely voluntary. If a person is unable or unwilling to act, they must formally renounce their right to apply so that the next person on the list can apply.
To apply for Letters of Administration, an application must be lodged with the Supreme Court Registry along with the death certificate. This process is very similar to obtaining a grant of Probate in circumstances where the deceased had a will.
Whilst the Administrator does not necessarily need a solicitor to apply for Letters of Administration on their behalf, many Administrators prefer to instruct a solicitor to act on their behalf for a number of reasons. This may be because the estate is large or complicated, or if they simply do not have the time to undertake the tasks required by themselves.