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The Probate Kit

What if there is no Will? ("Letters of Administration")

 

You have probably heard people say that if someone dies without leaving a Will, "everything goes to the State". Right?

 

WRONG!

 

It is true that no-one can get Probate if there is no Will, but assets still go to the next of kin - not "The State".

 

There is an order in which the next-of-kin can inherit

  1. A spouse has the first right, and if there is no spouse
  2. then children, and if there are no children
  3. then parents, and if there are none of them
  4. then brothers and sisters, etc.

The next-of-kin have a right to apply (in the same order) for a certificate called "Letters of Administration" (instead of probate).

 

The Letters of Administration certificate looks almost the same as a Probate certificate, and the application process is also the same. You use it the same way too.

 

Assets go to the next-of-kin according to a formula set by legislation (s50.pdf,) and the formula can cause problems because the spouse is entitled to the first $100,000 plus 1/3 of the rest. After that the balance goes to any children of the marriage. That $100,000 plus 1/3 limit shows how badly out of touch successive Victorian Governments have become - they do not even ensure that your spouse can keep the marital home. The spouse gets the option of buying the home, but they could find it impossible to raise the finance to do so, and even if they could, their lifestyle might be destroyed by the cost of servicing the loan. (This issue was under discussion in 2014 - hopefully there will be a constructive outcome).

 

The Victorian situation shows what can happen when legislation fails to keep up with property values. (The obvious conclusion is "JUST DO IT - MAKE A WILL").

 

You cannot use our Probate Kit for Letters of Administration applications.

 

If you have a Will but no Executor?

If you have a Will but there are no surviving executors, someone has to take the place of the executor - and that is usually a beneficiary under the Will.

 

If there are no surviving beneficiaries then the next of kin can apply. They apply for a special type of certificate ("grant") called Letters of Administration "with the Will annexed" (often called Letters "CTA").

 

You cannot use the Probate Kit for applications of this type.