The Law Handbook 2024

912 Section 9: Health, wills and other legal issues affecting older people who dies means a registered domestic partner or an unregistered domestic of that person. A registered domestic partner is a person who was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008 (Vic) at the time of their death. An unregistered domestic partner of a person who dies means a person who, although not married, was living with the person as a couple on a genuine domestic basis, irrespective of gender, and either: a had lived with the person continuously for a period of two years immediately before the person’s death; or b is the parent of a child under 18 with the person at the time of the person’s death. The Relationships Act 2008 (Vic) (s 35(2)) sets out the factors to be considered in evaluating whether a domestic relationship exists. In many cases, a de facto or same-sex partner will rank as the spouse of an intestate partner. Legal advice should be taken as to whether the A&P Act applies in any specific case. 2 ‘Children’ include illegitimate children where a person dies after the commencement of the Status of Children Act 1974 (Vic) (‘ SoC Act ’) (i.e. after 1 March 1975) provided that paternity has been expressly or impliedly admitted or has been established against the father in his lifetime or the parents of the child were married to each other at the time of its conception or at some subsequent time (s 7 SoC Act). An additional disadvantage of intestacy is that confusion can arise over who should apply for administration. The court has a very wide discretion as to whom it will grant administration, but in most cases whoever has the largest share in the estate is considered the most suitable. If another applicant applies early and is able to take out administration immediately, that applicant may succeed. Procedure for application for letters of administration As with an application for probate, an advertisement indicating an intention to apply for letters of administration after the expiration of 14 days is published on the Probate Office’s Online Advertising System website (www.supremecourt.vic.gov.au/wills- and-probate) . As with probate applications, all applications for letters of administration must be lodged online through the Supreme Court’s website known as RedCrest Probate. The following documents must be lodged electronically: 1 affidavit in support of the application sworn by the person applying for administration together with a full death certificate and a list of the deceased’s assets and liabilities; 2 affidavit of publication and searches are now made and filed by the Probate Office; 3 surety’s guarantee or insurance bond (if required); 4 originating motion; 5 order for letters of administration. When the order for letters of administration is made, the court will advise by email of the grant. As a condition of granting letters of administration to an applicant, the court, or Registrar of Probates, may require one or more sureties or an insurance bond. These sureties are to guarantee that the administrator or the insurance company will make good, in an amount not exceeding the amount of the deceased’s property as sworn, any loss that any person interested in the administration of the estate may suffer as a result of a breach by the administrator of his or her duties (s 57 A&P Act). The question of whether sureties are required or not is governed by the A&P Rules. Order 7.01 of the A&P Rules provides that a guarantee under section 57 of the A&P Act is not required except where it is proposed to grant administration: 1 to a creditor of the deceased or the legal representative of such a creditor; 2 to a person having no immediate beneficial interest in the deceased’s estate; 3 to an attorney under power of a person entitled to a grant of administration; 4 to the use and benefit of a minor or of a person incapable of managing their own affairs; 5 to any person who appears to the court or the Registrar to be resident outside Victoria; 6 where a grant of administration relates to a grant to collect and preserve the deceased’s assets ( ad colligendum bona ) or to bring or defend a proceeding ( ad litem ); 7 under sections 20, 22 or 24 of the A&P Act;