Not every deceased estate is administered under a grant of probate. Where there is no valid will, or where there is a will but no executor able and willing to act, the Supreme Court of Victoria may instead make a grant of letters of administration. The grant gives the administrator authority to collect the deceased’s assets, pay the estate’s debts and distribute what remains — either under the intestacy rules or under the terms of the will, depending on the form of grant.
This guide explains the two principal forms of administration in Victoria, how they differ from probate, who may apply, and the current Supreme Court process. It draws on the Administration and Probate Act 1958 (Vic) and the Supreme Court (Administration and Probate) Rules 2023 (Vic), together with current guidance from the Supreme Court of Victoria Probate Office. Because eligibility, priority and evidentiary requirements are fact-specific, this article is general information only — not advice on any particular estate.
The two forms of administration
In Victoria there are two main forms of letters of administration:
- Letters of administration (on intestacy) — where the deceased died without a valid will, or without a will that disposes of all of their property. The estate (or the intestate portion of it) is distributed under the statutory intestacy rules in Part IA of the Administration and Probate Act 1958 (Vic).
- Letters of administration with the will annexed — where there is a valid will, but no executor is able and willing to obtain probate. That may be because no executor was appointed, all named executors have died, all have renounced, or none can be found or is otherwise able to act. The will still governs the disposition of the estate; the administrator carries it into effect in place of an executor.
Less common variants exist — including de bonis non grants where administration is needed after a previous grantee has died or otherwise ceased to act, and limited or special grants for particular purposes. These arise infrequently and require case-specific advice.
How administration differs from probate
Probate and letters of administration both authorise the person named in the grant to deal with the deceased’s Victorian assets. There are, however, important differences:
- Source of authority. An executor named in a will derives authority from the will itself and, in a general sense, may begin acting from the date of death, with probate confirming that authority. An administrator, by contrast, has no equivalent pre-grant authority — the administrator’s power to deal with estate assets arises from the grant when it issues.
- Who applies. Probate is sought by an executor named in the will. Administration is sought by a person entitled to apply under the Act and the Rules, in an order of priority the Court expects to be observed.
- Distribution. Under a grant of probate, or of administration with the will annexed, the estate is distributed under the will. Under administration on intestacy, the estate is distributed under Part IA of the Act.
- Supporting material. Administration applications commonly require additional evidence — for example, evidence of the deceased’s family structure, renunciations or consents from persons with an equal or higher entitlement, and, in some cases, an administration bond or other security fixed by the Court.
Who may apply — priority and order
Where the deceased died intestate, the Rules set out the persons who may apply for administration and the order in which the Court will ordinarily consider them. In broad terms, priority begins with the surviving spouse or domestic partner, followed by the deceased’s children and other next of kin according to the intestacy rules, and then more remote categories. The precise order — and the treatment of joint applicants, minors, persons under a disability, and creditors — is governed by Part 2 of the Supreme Court (Administration and Probate) Rules 2023 (Vic), read with Part IA of the Act.
Where a person with an equal or higher entitlement does not wish to apply, the Court will usually expect their written consent to the applicant, or a formal renunciation. A person with priority who cannot be located may need to be cited to appear. Where children of a deceased person are entitled but are minors, or where a beneficiary is under a legal incapacity, the Court’s requirements — including as to security — change. These are the kinds of features that make administration applications materially more variable than straightforward probate applications, and where legal advice is often useful.
For administration with the will annexed, the person with priority is generally determined by reference to their interest under the will (for example, the principal beneficiary), again as governed by the Rules.
Intestacy distribution — in brief
On an intestacy, the estate is distributed under Part IA of the Administration and Probate Act 1958 (Vic). In general terms, the rules provide for the surviving spouse or domestic partner, for the deceased’s children, and for more remote relatives if there is no closer family. Statutory legacies and shares apply, and the interests of children of a prior relationship are dealt with expressly. Rather than repeat those provisions here, see our companion guide on probate and administration, and take advice on the particular family structure — the operation of the rules is not always intuitive, especially in blended families.
The Supreme Court process
Applications for letters of administration in Victoria are made to the Probate Office of the Supreme Court of Victoria and are filed electronically through the Court’s RedCrest-Probate portal. The process shares several features with probate applications and differs in others:
- Notice of intention. A notice of intention to apply must be published on RedCrest-Probate, and the application cannot be filed until at least 15 days after publication. This gives interested persons notice of the proposed application and an opportunity to object or file a caveat where appropriate.
- Application and supporting evidence. The application is supported by an affidavit from the proposed administrator addressing the death, family structure, entitlement to apply, the assets and liabilities of the estate and other matters required by the Rules. Where there is a will, the original will (and any codicils) is filed with the application.
- Consents, renunciations and citations. As above, where a person with equal or higher priority is not applying, their consent or renunciation will generally be expected. Where they cannot be located or will not respond, the Court’s citation procedure may need to be used.
- Administration bond or security. In some administration applications the Court may require an administration bond or other security. Whether security is required, and in what form, depends on the circumstances — for example, whether minor or incapacitated beneficiaries are involved, or whether the applicant is a creditor rather than a family member. The Court’s requirements should not be assumed and are set by reference to the Act and Rules.
- Requisitions. The Probate Office may issue requisitions seeking further evidence or amendments before the grant will issue. The number and nature of requisitions often reflects how complete the initial application was.
- Filing fees. The Supreme Court charges a filing fee calculated on the gross value of the deceased’s Victorian assets, together with a small fee for publication of the notice on RedCrest-Probate. Fees are set by regulation and ordinarily change from 1 July each year. For a current explanation of the fee structure, see our probate costs in Victoria guide.
Before the grant — a note of caution
Before letters of administration issue, the proposed administrator does not have the formal authority of an executor. Banks, share registries, Land Use Victoria and other institutions will generally decline to release assets until they see the grant. Steps that cannot wait — such as arranging the funeral, securing the deceased’s home, redirecting mail, or dealing with perishable property — can and should be attended to, but binding dealings with estate property (for example, transferring or selling assets) should not be undertaken in the intended administrator’s name before the grant. Acting as though a grant is already in hand exposes the individual to personal risk if the grant is later refused, if priority is contested, or if security requirements alter the position.
After the grant
Once letters of administration issue, the administrator’s duties are, in substance, similar to those of an executor: to collect the assets, pay the debts and administration expenses in the proper order, deal with income tax and, where relevant, estate returns, and distribute the balance. Distribution follows the will (in an administration with the will annexed) or the intestacy rules (in an administration on intestacy). For a fuller treatment of the fiduciary duties, statutory waiting periods and liability issues that apply to the person holding the grant, see our companion article on executor duties and personal liability in Victoria — most of that guidance applies to administrators in the same way.
Under section 99A of the Administration and Probate Act 1958 (Vic), Part IV family provision claims must generally be brought within six months of the grant, whether the grant is probate or administration. Prudent administrators wait until that period has passed before making final distributions, unless the beneficiary position is clear and appropriate protections are in place.
When to get legal advice
Administration applications often benefit from legal advice where:
- there is a will but its validity, meaning or execution is in question;
- the family structure is complex — for example, blended families, estranged children, or unclear domestic-partner status;
- a person with equal or higher priority is unable or unwilling to consent or renounce;
- minor or incapacitated beneficiaries are involved, or the Court is likely to require security;
- the estate includes business interests, jointly held assets, superannuation entitlements or interstate or overseas assets;
- a Part IV family provision claim is foreshadowed or expected;
- the applicant is a creditor rather than a family member; or
- the estate is insolvent, or its solvency is uncertain.
Holt & Macdonald acts for administrators and applicants in probate and administration matters from our Ringwood office. If you are considering applying for letters of administration and would like to discuss your position, please call (03) 9871 9300 or email holtmac@holtmac.com.au.
