If there is no valid will at the time of death, then the estate is considered to be intestate. Section 63 of the Probate and Administration Act 1898 (NSW) provides that administration of an intestate estate may be granted to:

• the spouse of the deceased;

• one or more of the next of kin; or

• the spouse together with one or more of the next of kin.

Section 32G of the Probate and Administration Act 1898 (NSW) states that references in the Act to “spouse” of an intestate includes a person who was, at the time of death, the de facto of the intestate.

Accordingly, upon the death of a person who was in a de facto relationship and who did not leave a will, the de facto may make an application for letters of administration.

If there is a valid will but no executor is named, or for some reason the named executor is unable or unwilling to apply, letters of administration with the will annexed will be necessary. Such an application is not covered by s 63 of the Probate and Administration Act — instead s 74 of the Act will apply. Section 74 is much broader in terms of who is able to obtain a grant. A de facto spouse would potentially be eligible under s 74 , however the general practice in such matters is that letters of administration will generally be granted to the beneficiary entitled to the majority of the estate (or beneficiary otherwise agreed to by the majority of beneficiaries). That may, or may not, be the de facto. Either way, in those circumstances the application will proceed in accordance with the general procedure for letters of administration with the will annexed. See Letters of administration with the will annexed.

The de facto applications subtopic will, insofar as it relates to NSW law, be limited to de facto applications on intestacy.

Since 1 March 2010, the NSW legislation has made specific provision for domestic partnerships, which cover de facto relationships as well as registered relationships or interstate registered relationships pursuant to the Relationships Register Act 2010 . References to “de facto” in this subtopic should be read to include registered relationships. See the guidance note “Who is a spouse/partner?” for more information.

The court has complete discretion as to who may be appointed as the administrator of an estate. Preference is for one administrator to be appointed although it will entertain joint applications.

Rule 610(1) Uniform Civil Procedure Rules 1999 (Qld) sets out the order of priority of persons entitled to a grant of letters of administration on intestacy. The first entitled is “the deceased’s surviving spouse”.

A spouse includes the person’s de facto partner.

Accordingly, upon the death of a person who was in a de facto relationship and who did not leave a will, the de facto may make an application for letters of administration.

Section 25 of the Administration Act 1903 (WA) provides that the court may grant administration of the estate of an intestate person to a person, other than a minor, who is:

• any one or more of persons entitled in distribution to the estate (as set out in Table in s 14  of the Act): or

• any other person whether a creditor or not.

If there is no such person then the court may grant administration to the Public Trustee.

Accordingly, upon the death of a person who was in a de facto relationship and who did not leave a will, the de facto may, if they are entitled to a distribution of the estate, make an application for letters of administration.

There is no system of priority within the Act as to who may apply amongst the beneficiaries, but as a general rule, the person with the greatest proportion of the intestate estate will be preferred.

Probate Rule 11(7) provides a table setting out the order in which an applicant for a grant of administration is entitled. If the applicant is below any other category, then those categories have to be “cleared off” — that is, explained as to why the persons in the higher categories are not applying. For the purposes of this guidance note, the table is as follows:

• a husband — who is to be described in the administrator’s oath as “the lawful widower”;

• a wife — who is to be described in the administrator's oath as "the lawful widow"; and

• a domestic partner — who is to be described in the administrator’s oath as “the domestic partner”.

It is of course possible for a deceased to be survived by both a lawful spouse and a domestic partner. In that case, the lawful spouse is higher on the table and has first right to apply for the grant.

Rule 19 of the Rules provides that a spouse of the deceased is entitled to a grant of letters of administration where the deceased died wholly intestate.

Section 12 of the Act provides that the court may grant administration of the estate of an intestate person to a person, other than a minor, who is:

• the partner(s) of the deceased;

• one or more of the next of kin; or

• the partner and one or more of the next of kin.

If there is no such person then the court may grant administration to someone it regards as fit to be trusted to act in that capacity, including a creditor of the deceased.

Accordingly, upon the death of a person who was in a de facto relationship and who did not leave a will, the de facto may make an application for letters of administration.

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

• Succession Act 2006 (NSW);

• Probate and Administration Act 1898 (NSW); and

• Pt 78 of the Supreme Court Rules 1970 (NSW), which were substantially amended as from 21 January 2013.

Please note, however, that if the deceased died before 1 March 2010, the old Wills Probate and Administration Act 1898 (NSW) will apply instead of the Succession Act 2006 (NSW), in determining how the intestate estate is distributed.

The relevant legislation in Victoria dealing with domestic partners is the Relationships Act 2008 and in respect to grants of representation see definitions of domestic partner, partner, unregistered domestic partner and registered domestic partner, in ss 3 , 51 , 51A, 52 of the Act.

The most relevant Queensland legislation in relation to letters of administration by de facto spouses are:

• Succession Act 1981 (Qld);

• Uniform Civil Procedure Rules (Qld) 1999 ; and

• s 32DA , Acts Interpretation Act 1954 (Qld).

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

• Administration Act 1903 (WA); and

• Non Contentious Probate Rules 1967 (WA)

The relevant legislation in SA with respect to resealing is as follows:

• Administration and Probate Act 1919 (SA); and

• The Probate Rules 2004 (SA).

The relevant legislation in Tasmania with respect to resealing is as follows:

• Intestacy Act 2010 (Tas); and

• Administration and Probate Act 1935 (Tas).

The most relevant legislation in Australian Capital Territory in relation to letters of administration matters are:

• Administration and Probate Act 1929 (ACT); and

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

The legislation sets out who qualifies as a de facto spouse for the purposes of the Probate and Administration Act 1898 (NSW).

If the domestic partnership is registered it must be registered in accordance with Pt 2.2 of the Relationships Act.

If the partnership is unregistered then it must comply with the definition as set out in s 3 Administration and Probate Act.

The legislation sets out who qualifies as a de facto spouse for the purposes of the Succession Act 1981 .

Section 15 of the Administration Act 1903 (WA) sets out who qualifies as a de facto spouse for the purposes of the Act.

A person who applies for a grant as the domestic partner must fit the definition of domestic partner — Probate Rule 3.01 (ii) “Domestic partner” means a person declared under the Family Relationships Act 1975 (s 11) to have been a domestic partner of a deceased person as at the date of his or her death.

The person claiming as domestic partner must therefore obtain a declaration from the Court (may be any of the Supreme Court, District Court or Magistrates Court). As the issuing fee is lower in the Magistrates Court, it may be preferable to issue the summons in that Court.

The meaning of spouse is provided in s 6 of the Intestacy Act 2010 (Tas).

Section 44 of the Administration and Probate Act 1929 (ACT) sets out who qualifies as a de facto spouse for the purposes of the Act.

See Who qualifies as a de facto.

Note to practitioners in South Australia: Content under this heading does not apply in South Australia.

The de facto spouse may not be the only person entitled to the grant of letters of administration. Consideration should be given to whether anyone else may apply. If another person or people can also apply, consideration should also be given to whether:

• there will be a joint application; and

• the other person or people will consent to the de facto alone applying; or

• there will be competing applications.

The domestic partner or legal spouse will be the preferred applicant for a grant of letters of administration. Consideration should be given to whether anyone else may apply. If another person or people can also apply, consideration should also be given to whether:

• there will be a joint application; and

• the other person or people will consent to the domestic partner alone applying; or

• there will be competing applications.

Rule 610(1) Uniform Civil Procedure Rules 1999 (Qld) sets out the order of priority of persons entitled to a grant of letters of administration on intestacy. Although the deceased’s spouse has the highest priority, there may be more than one spouse who may be entitled to apply. If another person or people can also apply, consideration should also be given to whether:

• there will be a joint application; and

• the other person or people will consent to the domestic partner alone applying; or

• there will be competing applications.

The de facto spouse may not be the only person entitled to the grant of letters of administration. Consideration should be given to whether anyone else may apply. If another person or people can also apply, consideration should also be given to whether:

• the de facto spouse has a greater interest in the estate and if not;

• if the other person or people will consent to the de facto alone applying; or

• there will be competing applications.

The de facto spouse may not be the only person entitled to the grant of letters of administration. Consideration should be given to whether anyone else may apply. If another person or people can also apply, consideration should also be given to whether:

• there will be a joint application; and

• the other person or people will consent to the de facto alone applying; or

• there will be competing applications.

The de facto spouse may not be the only person entitled to the grant of letters of administration. Consideration should be given to whether anyone else may apply. If another person or people can also apply, consideration should also be given to whether:

• there will be a joint application; and

• the other person or people will consent to the de facto alone applying; or

• there will be competing applications.

See Other people who may also be entitled to grant.

The de facto applicant should:

• see to publication of relevant notices;

• prepare appropriate affidavits;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

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

The domestic partner should:

• see to publication of relevant notices;

• prepare appropriate affidavits;

• obtain consents/notices if necessary; and

• obtain an administration bond, if necessary.

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

The de facto applicant should follow the usual course for obtaining a grant of letters of administration on intestacy.

The de facto applicant should:

• see to publication of relevant notices;

• prepare appropriate affidavits;

• obtain consents/notices if necessary; and

• obtain an administration bond, if necessary at the discretion of the court.

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

The application for a grant of administration proceeds in the usual way. The applicant must describe their relationship as: “the domestic partner … and their entitlement in the estate — such as “one of the persons entitled to share in the estate”.

The form for the administrator’s oath — Probate Form 52 — Modification note (d) provides the wording for setting out the details of the declaration under the Family Relationships Act 1975 . A copy of the sealed order must be annexed to the oath.

The de facto applicant should:

• see to publication of relevant notices;

• prepare appropriate affidavits;

• prepare the administrator’s Oath;

• obtain the original record of death; and

• obtain an administration bond.

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

The de facto applicant should:

• see to publication of relevant notices;

• prepare appropriate affidavits;

• obtain consents/notices; and

• obtain an administration bond, if necessary.

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

See Obtaining the grant.

The costs for applications for letters of administration are regulated, and are set out in the Costs and Taxes topic.

The costs for applications for letters of administration are as set out in the Costs and Taxes topic.

The costs for applications for letters of administration are set out in the Costs and Taxes topic.

The costs for applications for letters of administration subject to usual WA costs provisions, and are set out in the Costs and Taxes topic.

As for all grants in South Australia, costs are a matter of contract between the administrator and the practitioner. The administrator is entitled to recover those costs from the estate.

Just as with probate matters, solicitors' costs for services provided in relation to a reseal of a grant are regulated in accordance with Supreme Court Rules 2000 (Tas).

The costs for applications for letters of administration are regulated, and are set out in the Costs and Taxes topic.

After letters of administration have been granted, the administrator must administer the estate in accordance with the laws of intestacy as set out in the relevant state and territory legislation.

See Duties following grant and Estate administration.