Sometimes, there are special circumstances which necessitate the making of a grant of administration for a specific purpose (other than simply to bring in the assets and distribute to beneficiaries), to overcome a problem with the nominated executor/previous administrator or with the estate itself. Often, these grants will be limited until the given situation resolves itself, whereupon a standard grant of probate (or letters of administration) may be granted to the proper person.

If an executor who has been granted probate of an estate dies, the “chain of representation” means that executorship of the original estate passes to the executor’s executor.

However, this does not apply to executors who have not obtained a grant or to administrators; that is, if a person has been granted letters of administration of an estate (or is the last survivor of a number of administrators), and subsequently dies, the entitlement to administer the original estate does not pass to his or her executor or administrator. Instead, the appropriate person must seek a grant of letters of administration de bonis non.

Similarly, if an executor is granted probate of a will, and subsequently dies without validly appointing an executor in his or her will, then in relation to the unadministered portion of the original estate, another type of de bonis non application — letters of administration de bonis non with the will annexed — will be necessary.

See Letters of administration de bonis non.

The Supreme Court will not grant probate or letters of administration to a minor.

However, in circumstances where:

• the deceased’s will nominates a sole executor, and that executor is a minor as at the date of death; or

• the deceased dies intestate and the only person who is entitled to a grant of administration is a minor

the court may grant letters of administration to the minor’s guardian, limited to the period until the minor attains the age of 18 years thereby ceasing to be a minor. This is known as a grant of letters of administration durante minore aetate.

See Letters of administration durante minore aetate.

Note to practitioners in Tasmania practitioners: This guidance note does not apply in Tasmania

Mental or physical incapacity may render a person who otherwise would have been entitled to the grant unable to take the grant.

The principal examples of these circumstances are when the deceased’s will nominates a sole executor, and that executor is incapable as at the time the grant is to be sought, or after obtaining a grant of probate the executor loses capacity.

In such circumstances, a grant may be made to another person, (in Queensland including the attorney of the incapacitated person) limited to the period of disability. In cases where the person otherwise entitled is mentally incapable due to insanity, the grant is called letters of administration durante dementia.

See Letters of administration durante dementia/limited during disability.

The Supreme Court can refuse to grant probate or letters of administration to the person otherwise entitled, if they are outside the jurisdiction (the jurisdiction being the state in which the grant is being sought, namely, New South Wales). The court can also make an alternative grant where the executor or administrator is out of the jurisdiction, even if probate or letters of administration have already been granted to that person.

The Probate and Administration Act 1898 (NSW) provides two separate mechanisms for grants when the executor or administrator is out of the jurisdiction:

• where a grant has not yet been made, s 72 of the Probate and Administration Act 1898 (NSW) allows letters of administration to be granted to a person appointed by the nominated executor (or , if there is no executor or no will, the person who otherwise would have been entitled to seek a grant of letters of administration such as the deceased’s spouse) pursuant to a power of attorney. The grant is made to the attorney on behalf of the absent person, and is limited until the absent person returns to the jurisdiction and applies for an unlimited grant; and

• where a grant has already been made, the executor/administrator is subsequently shown to be residing outside the jurisdiction, and a person (for example, a beneficiary or creditor) is delayed in obtaining the benefits to which they are entitled as a result, ss 76–80 of the Probate and Administration Act 1898 (NSW) allow the person (or NSW Trustee and Guardian) to apply for a special grant of letters of administration until the executor/administrator returns to the jurisdiction.

Where the executor or entitled administrator is out of the state, it may be impractical for him or her to obtain a grant, particularly when one considers the obligations and demands on one's time involved in the actual administration of an estate. Practically speaking, and depending on the assets owned by the deceased, it will be much easier for a person who is present in the jurisdiction to administer the will of the deceased

The court may make a grant to a person residing in Queensland who the court is satisfied may act under a power of attorney for the person who is entitled to a grant.

The Supreme Court can refuse to grant probate or letters of administration to the person otherwise entitled, if they are outside the jurisdiction (the jurisdiction being the state in which the grant is being sought, namely, Western Australia). The court can also make an alternative grant where the executor or administrator is out of the jurisdiction, even if probate or letters of administration have already been granted to that person.

The Administration Act 1903 (WA) provides two separate mechanisms for grants when the executor or administrator is out of the jurisdiction:

• where a grant has not yet been made, s 34, of the Act allows letters of administration to be granted to a person appointed by the nominated executor (or person properly entitled to grant of administration such as spouse) pursuant to a power of attorney. The grant is made to the attorney on behalf of the absent person, and is limited until the absent person returns to the jurisdiction and applies for an unlimited grant; and

• where a grant has already been made, the executor/administrator is subsequently shown to be residing outside the jurisdiction, and a person (for example, a beneficiary or creditor) is delayed in obtaining the benefits to which they are entitled as a result, s 38 of the Act allows the person to apply for a special grant of letters of administration until the executor/administrator returns to the jurisdiction

The court is able to grant probate to an executor who is outside the jurisdiction: s 21 of the Administration and Probate Act 1935 (Tas).

Practically speaking, and depending on the assets owned by the deceased, it will be much easier for an executor who is present in the jurisdiction to administer the will of the deceased.

Where a person entitled to a grant resides outside South Australia, administration may be granted to that person’s duly appointed attorney under r 43. Note — the instrument appointing the attorney must specify the details of the estate — a general power of attorney will not suffice.

The court is able to grant probate to an executor who is outside the jurisdiction: s 10B of the Administration and Probate Act 1929 (ACT. Where the court grants probate to an executor who is a resident outside of the jurisdiction, the Act provides that the executor will be taken to be a resident in the ACT: s 69 of the Administration and Probate Act 1929 (ACT.

Practically speaking, and depending on the assets owned by the deceased, it will be much easier for an executor who is present in the jurisdiction to administer the will of the deceased.

An executor who is outside the jurisdiction can appoint an attorney who is resident in the ACT to act on his/her behalf to obtain a grant of probate.

See Applications durante absentia (outside jurisdiction) .

Sometimes, circumstances will arise where the assets of the estate will be endangered if they are not dealt with urgently. The delays that may arise in the course of a normal application for a grant of probate (or letters of administration) often cannot be avoided. In these cases, a grant of letters of administration ad colligenda bona should be sought. Such a grant is made on an urgent basis for specific purposes as sought by the applicant.

A grant ad colligenda bona will allow the successful applicant to take the steps necessary to protect the assets of the estate, pending the grant of probate in the normal way.

See Letters of Administration ad colligenda bona.

Section 73 of the Probate and Administration Act 1898 (NSW) allows the court to appoint an administrator or receiver of a deceased estate in circumstances where:

• there is a suit pending as to the validity of a will, or for obtaining, recalling or revoking probate or administration; or

• there are contested proceedings on foot.

This is known as administration pendente lite.

The court can, under r 638 Uniform Civil Procedure Rules 1999 (Qld), appoint a person to be an administrator of the estate pending the outcome of proceedings under Ch 15 Uniform Civil Procedure Rules 1999 (Qld).

Section 35 of the Administration Act 1903 (WA) allows the court to appoint an administrator or receiver of a deceased estate in circumstances where:

• there is a suit pending as to the validity of a will, or for obtaining, recalling or revoking probate or administration; or

• there are contested proceedings on foot.

This is known as administration pendente lite

Rule 72 of The Probate Rules 2015 (SA) requires that an application for a grant pendente lite be made by an administrator appointed pursuant to an order of the court pending a probate action instituted in the court.

Section 19 of the Administration and Probate Act 1935 (Tas) allows the court to appoint an administrator in circumstances where:

• there is a suit pending as to the validity of a will, or for obtaining, recalling or revoking probate or administration; or

• there are contested proceedings on foot.

This is known as administration pendente lite.

Section 23 of the Administration and Probate Act 1929 (ACT) allows the court to appoint an administrator or receiver of a deceased estate in circumstances where:

• there is a suit pending as to the validity of a will, or for obtaining, recalling or revoking probate or administration; or

• there are contested proceedings on foot.

This is known as administration pendente lite.

See Letters of administration pendente lite.

In circumstances where it is not practical or timely to seek a full unlimited grant of probate or letters of administration, an appropriate person may seek a limited grant of administration from the court, for the purpose of:

• commencing or defending legal proceedings; or

• carrying out some other specific act.

A grant for the first of these purposes (relating to legal proceedings) is known as a grant ad litem.

The court is reluctant to make such a grant if a regular grant can be made.

See Letters of Administration ad litem (limited to specific acts).

The Supreme Court is reluctant to grant administration to a creditor, although s 74 of the Probate and Administration Act 1898 (NSW) and r 78.5 of the Supreme Court Rules 1970 (NSW) allow a creditor to apply for a grant.

Practitioners should note that the Supreme Court Rules, including the rules relevant to creditor applications, were substantially amended effective 21 January 2013. For the procedure involved in a creditor’s application, please see Letters of administration with the will annexed, and in particular Creditor applications.

A creditor can apply for a grant in accordance with the order of priority set out in rr 603(1) and 610(1) Uniform Civil Procedure Rules 1999 (Qld).

For the procedure involved in a creditor's application, please see Letters of administration with the will annexed

The Supreme Court is reluctant to grant administration to a creditor, although ss 25 , 36 , 37 and 38 Administration Act 1903 (WA) allow a creditor to apply for a grant.

For the procedure involved in a creditor's application, please see Letters of administration with the will annexed, and in particular Creditor applications.

The Supreme Court is reluctant to grant administration to a creditor, although s 12 of the Administration and Probate Act 1929 (ACT) allows a creditor to apply for a grant.

For the procedure involved in a creditor's application, please see Letters of administration with the will annexed, and in particular Creditor applications.