Where the deceased dies intestate (i.e. without a Will) or if the Will is invalid or cannot be found, the personal representative of the deceased (i.e. administrator) is required to make an application to Court for a Grant of Letters of Administration to manage the deceased’s assets. Unlike a Grant of Probate, the distribution of the deceased’s assets will follow intestacy laws instead, and may not be in line with what the deceased would have wanted.
Therefore, for greater control over who inherits your assets, consider writing a Will. It is preferable to seek the assistance of a lawyer to ensure the Will is validly executed.
How to Apply
Though most of the probate applications are non-contentious, it is a complex matter in terms of the necessary documentation required. It is advisable to engage a lawyer to facilitate the application process and to handle the large amount of paperwork.
Note: If the value of the estate is $5 million or less, the application is filed in the Family Court. If the value of the estate is more than $5 million, it is filed in the Family Division of the High Court.
Who can Apply
The administrator will usually be the spouse or the next-of-kin of the deceased. The Intestate Succession Act sets out the classes of persons who are entitled to apply for a grant. In descending order of priority, they are:
- The spouse;
- The children of the deceased;
- The parents;
- The siblings;
- The nephews and nieces;
- The grandparents;
- The uncles and aunts.
In the event the beneficiary of the estate is below 21 years old, there must be at least two administrators appointed.
The Application
The documents required for Grant of Letters of Administration
Stage 1: Filing the application
- Originating Summons;
- The Caveat searches;
- The Statement for Administration;
- The Administration Oath;
- The Death Certificate;
- The Renunciation and Consent (if any);
- Consent of Co-administrator (if any);
Stage 2: Providing the supporting Affidavit and Order In Terms (“OIT”) of Originating Summons
- Supporting Affidavit (to be filed within 14 days from filing of OS);
- Schedule of Assets;
- Sureties to Administration Bond (if any);
- Summons for Dispensation of Sureties (if any).
Step 3: Extracting the Grant
- Request to Extract Grant;
- Administration Bond;
- A final caveat search
Once the Court accepts that no other documents are required, we will be able to request the Grant of Letters of Administration for you. Section 7 of the Intestate Succession Act sets out how the assets are to be distributed. We set out below the 9 simple rules outlined:
| NO. | SURVIVING | ABSENT | WHO GETS WHAT |
|---|---|---|---|
| 1. | Spouse | Children, Parent | Spouse entitled to 100% of the estate |
| 2. | Spouse, Children | Spouse entitled to 50% of the estate, while children entitled to the other 50% | |
| 3. | Children | Spouse | Children entitled to 100% of estate in equal portions |
| 4. | Spouse, Parent | Children | Spouse entitled to 50% of the estate, while parent entitled to the other 50% |
| 5. | Parent | Spouse, Children | Parent entitled to 100% of the estate |
| 6. | Siblings | Spouse, Children, Parent | Siblings share the estate in equal portions |
| 7. | Grandparents | Spouse, Children, Parent, Siblings | Grandparents entitled to 100% of estate in equal portions |
| 8. | Uncles & Aunts | Spouse, Children, Parent, Siblings, Grandparents | Uncles & Aunts entitled to 100% of estate in equal portions |
| 9. | None | Government entitled to 100% of estate |
Length of Process
The matter may require attendance in the Family Justice Courts and could take as short as 3 months to beyond 6 months to complete as there are several steps in the process, provided the required documents are filed promptly.
Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact us walter@silvesterlegal.com for your free first legal consultation. While efforts have been made to ensure the accuracy of the work, any errors remain the author’s own.
