Being an Administrator
What is an Administrator of an estate? How is an Administrator of an estate appointed?
Letters of Administration can be made by the Supreme Court where a person dies without leaving a Will or without an executor. Once granted, the appointed person will be the Administrator of the estate, just like an Executor appointed in a Will.
Letters of Administration are essentially the same as a Grant of Probate. They demonstrate that the court has examined the relevant documents and is satisfied that the person named in the letters has the authority to administer the deceased’s estate.
Where there is no Will, Letters of Administration are essential to allow the personal representative 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 following are examples of when an Administrator may be required to be appointed for an estate:
If a person died without a Will, it is called dying intestate. Letters of administration will be required to appoint an Administrator who is entitled to administer the estate in accordance with laws of intestacy.
The Executor does not wish to act as executor
A person appointed by the willmaker as executor does not have to accept this responsibility. If a person renounces appointment under the will (i.e. refuses to act), another executor named in the will may undertake the role if the wording of the will allows this. If there is no other executor named in the will it will be treated as a will with no executor appointed and letters of administration with the will annexed will need to be obtained.
No executor appointed
When there is no executor appointed under the Will of the deceased, or the executor has died before the willmaker or become divorced from the willmaker, the court will usually grant the administration of the estate to the beneficiary with the greatest interest in the estate. This administrator will then fulfil the wishes of the deceased as expressed in the Will. The procedure is called “letters of administration with the will annexed”.
If the Executor has died
If the sole executor dies before the willmaker or before the estate has been administered and probate has not been granted then letters of administration with the Will annexed will be needed.
Executor is a child
Sometimes a willmaker may appoint a child to act as their executor hoping that the child will be of age when they die. If the willmaker dies before the child reaches 18 years old, then the Court can appoint the minor’s guardian or another person as it sees fit, as executor until the minor reaches adulthood.
Who can be an Administrator?
If there is no Will then the following descending order of priority of persons to whom the court may grant letters of administration on intestacy applies:
- the deceased’s surviving spouse;
- the deceased’s children;
- the deceased’s grandchildren or great-grandchildren;
- the deceased’s parent or parents;
- the deceased’s brothers and sisters;
- the children of deceased brothers and sisters of the deceased;
- the deceased’s grandparent or grandparents;
- the deceased’s uncles and aunts;
- the deceased’s first cousins; and
- anyone else the Court may appoint.
If there is a Will but no executor to act then the following descending order of priority of persons can apply to the court to obtain grant of letters of administration with the Will:
- a trustee of the residuary estate;
- a life tenant of any part of the residuary estate;
- a beneficiary of any part of the residuary estate;
- a person otherwise entitled to all or part of the residuary estate under the law of intestacy;
- a beneficiary of a specific gift in the Will;
- a creditor or person who has acquired the entire beneficial interest under the Will;
- anyone else the court may appoint.
What are the duties of an Administrator?
The Administrator’s duties are similar to those of an executor, and include
- organising the funeral and attending to payment;
- gathering the deceased’s assets;
- applying to the Supreme Court for a grant of Probate (if necessary);
- locating and notifying the beneficiaries of the estate regarding their entitlements;
- paying any debts and liabilities of the estate, owing prior to death;
- defending the Will of the deceased if litigation is started against the deceased’s estate;
- attending to tax returns for the deceased and their estate;
- distributing the estate in accordance with the deceased’s Will.
Will I have to pay anything if I am Administrator?
Generally, you will be entitled to a reimbursement from the estate for the reasonable costs that you incur in making an application for a grant of probate or letters of administration and dealing with the assets and liabilities of the estate.
Can I be paid to be an Administrator?
Administrators do not have an automatic right to be paid to act as Administrators of an estate. The approval of the court would be needed in order for an Administrator to seek remuneration or commission from an estate.
In Queensland, the law states that the court may authorise the payment of remuneration or commission to the Administrator for their services as Administrator if the court considers it appropriate. In addition, the court may also attach conditions to the payment of any remuneration or commission if it considers it appropriate in the circumstances.