Letters of administration with the will annexed (also known as “letters of administration cum testamento annexo” or “letters of administration cta”) are obtained when a person has died:

• with a will; but

• where the executor named in the will is unwilling/unable to take probate or no appointment of executor is made in the will.

In such circumstances, an appropriate person (generally one of the beneficiaries, most commonly the beneficiary entitled to the biggest share of the estate) can apply to the Supreme Court of the relevant state or territory for letters of administration with the will annexed/cta. Upon grant of the letters of administration, the administrator is obliged to see to administration of the estate in accordance with the will, just as if he or she had been named executor and had obtained probate.

See Reason for grant (below) for Checklist — Applications for letters of administration with the will annexed.

The most relevant New South Wales legislation in relation to letters of administration cta matters are:

• Succession Act 2006 (NSW);

• Probate and Administration Act 1898 (NSW); and

• Pt 78 of the Supreme Court Rules 1970 (NSW), which it should be noted have been amended, effective 21 January 2013.

Please note, however, that if the will is dated before 28 February 2008, the old Wills, Probate and Administration Act 1898 (NSW) may apply instead of the Succession Act 2006 (NSW).

The relevant legislation in Victoria with respect to letters of administration with the will annexed is as follows:

• Administration and Probate Act 1958 (Vic); and

• Supreme Court (Administration and Probate Rules) 2004 (Vic).

The most relevant Queensland legislation in relation to letters of administration cta matters are:

• Succession Act 1981 (Qld); and

• Uniform Civil Procedure Rules 1999 (Qld).

The most relevant WA legislation in relation to letters of administration cta matters are:

• Administration Act 1903 (WA); and

• Non-contentious Probate Rules 1967 (WA).

The relevant legislation in SA with respect to letters of administration with the will annexed is as follows:

• Administration and Probate Act 1919 (SA); and

• The Probate Rules 2015 (SA).

The relevant legislation in Tasmania with respect to letters of administration with the will annexed is as follows:

• Administration and Probate Act 1935 (Tas); and

• Probate Rules 2017 (Tas).

The relevant legislation in the Australian Capital Territory legislation with respect to letters of administration with the will annexed is as follows:

• Administration and Probate Act 1929 (ACT); and

• Pt 3.1 of the Court Procedures Rules 2006 (ACT).

The most common circumstances in which letters of administration with the will annexed/cta are necessary are where the named executor has predeceased the testator, however there are other reasons why an executor may be unable to seek probate.

See Reasons for grant for a comprehensive list of when letters of administration with the will annexed/cta would be the appropriate application, and the evidence necessary to put before the court in each case.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. There is no requirement to identify the assets and liabilities of the estate prior to taking out a grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

Once it has been established that letters of administration cta is the appropriate application, the next step is determining the most appropriate person to seek the grant. Once this has been done, the proposed administrator should turn his or her attention to determining the assets and liabilities of the estate, as these details will need to be included in the affidavit accompanying the application to the court for the grant.

See Identifying the administrator, assets and liabilities.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• see to publication of relevant notices;

• prepare appropriate affidavit;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• see to publication of relevant notices;

• prepare appropriate application and affidavit; and

• obtain appropriate consents (if required).

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• see to publication of relevant notices;

• prepare appropriate application and affidavit; and

• obtain appropriate consents (if required).

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate including proof of death if relevant;

• see to publication of relevant notices;

• prepare appropriate affidavit;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• prepare appropriate affidavits;

• obtain consents if necessary to clear off others entitled to the grant in priority; and

• obtain surety’s guarantee if necessary at the discretion of the court.

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• see to publication of relevant notices;

• prepare appropriate affidavit;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

The proposed administrator should:

• obtain appropriate evidence as to the unwillingness/inability of the named executor to seek probate;

• see to publication of relevant notices;

• prepare appropriate affidavit;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

The administrator can then file the necessary documents at the Supreme Court with a view to obtaining the grant of letters of administration cta.

See Obtaining the grant.

While a creditor of an estate is eligible to bring an application for letters of administration cta, the court is reluctant to grant such an application. If a creditor proposes to bring an application, he or she must cause citations to be issued in respect of all of the beneficiaries.

Order 4.06 Supreme Court (Administration and Probate) Rules 2004 contemplates an application for letters of administration by a creditor. It would be usual for a beneficiary to make application in the first instance.

A creditor is entitled in accordance with the order of priority set out in r 603(1) Uniform Civil Procedure Rules 1999 (Qld) to obtain a grant. They must first clear off all the persons who have a higher entitlement to obtain a grant under the order or priority.

While a creditor of an estate is eligible to bring an application for letters of administration cta, ,the court is reluctant to grant such an application. If a creditor proposes to bring an application, he or she must cause citations to be issued in respect of all of the beneficiaries.

A creditor is entitled to obtain a grant only after first clearing off all next of kin of the deceased who are entitled to the grant in priority. A creditor must also obtain a surety’s guarantee.

While a creditor of an estate is eligible to bring an application for letters of administration cta, the court is reluctant to grant such an application. If a creditor proposes to bring an application, he or she must cause citations to be issued in respect of all of the beneficiaries.

While a creditor of an estate is eligible to bring an application for letters of administration with the will annexed, the court is reluctant to grant such an application. If a creditor proposes to bring an application, he or she must cause a notice to be issued to relevant persons including family members.

See Creditor applications.

After letters of administration have been granted, the administrator must administer the estate in accordance with the will, just as an executor would do following a grant of probate.

See Duties after grant and Estate administration.

Just as with grants of probate and letters of administration on intestacy, legal costs for grants of letters of administration cta are regulated, and are calculated by reference to a prescribed scale.

Legal costs in respect to deceased estates and applications for grants of representation are governed by the Practitioner Remuneration Order pursuant to the Legal Profession Act 2004 (Vic) and Appendix 3-A of the Supreme Court (Probate and Administration) Rules 2004 (Vic).

The provisions of the Legal Profession Act 2007 (Qld) will apply to legal costs associated with a grant of letters of administration with the will.

Just as with grants of probate and letters of administration on intestacy, legal costs for grants of letters of administration cta are regulated, and are calculated by reference to a prescribed scale. It is not unusual for solicitors to contract out of the prescribed scale be entering into a retainer agreement with the administrator.

Just as with other grants, legal costs for grants of letters of administration cta are chargeable pursuant to any costs agreement entered into between the client and the solicitor, and where no costs agreement has been entered into pursuant to the Supreme Court scale of costs.

Just as with grants of probate and letters of administration on intestacy, legal costs for grants of letters of administration cta are regulated, and are calculated by reference to a prescribed scale.

Just as with grants of probate and letters of administration on intestacy, legal costs for grants of letters of administration with the will annexed are chargeable pursuant to any costs agreement entered into between the client and the solicitor, and where no costs agreement has been entered into pursuant to scale of costs.

See Costs for discussion specific to applying for letters of administration with the will annexed.

See Costs and taxes for general discussion.