When a loved one dies, their assets are usually frozen and cannot be dealt with until such time a grant of representation has been made by the Supreme Court of Victoria to the nominated Executor or an Administrator, who acts as the legal personal representative (LPR) for the estate.
The Grant of Representation enables the LPR to take control of the estate assets and liabilities.
Depending on the nature and circumstances of a deceased person and their estate, and any Wills, it may take some time before an application for a full grant of representation can be made and granted by the Court. This delays the ability to deal with assets and liabilities.
Limited and urgent grants
However, in some limited cases, an administrator may be appointed by the Supreme Court in a limited capacity for the purpose of carrying out a specific task/s or for a specific time until a full grant of representation can be made. This enables them to ‘caretake’ the estate and exercise powers granted by the Court in what can be urgent circumstances.
The most common limited grants of representation include:
Letters of Administration - Ad colligendum bona
A grant of letters of administration ad colligendum bona is one of the most common forms of a limited grant and is usually made when there is a delay in making a full grant. An administrator, usually a person who has standing (an executor under a will or next of kin with the greatest entitlement if no Will) is able to collect, preserve and protect the estate assets.
By way of example, this type of application is commonly seen where a contract of sale for property has been executed prior to the deceased’s passing and settlement has not yet been effected. To avoid any breach of contract or loss to the estate, an administrator will be able to carry on with the sale and enable settlement to be effected.
Letters of Administration – Pendente Lite
A grant of letters of administration pendente lite is another common limited grant of representation which enables administration of the estate whilst litigation is on foot.
If there is a litigation on foot (or there is an indication that there will be a litigation in relation to the estate), the Court may elect to appoint an administrator pendente lite. An administrator appointed in this instance will be appointed to recover, preserve, and call in the estate assets for the benefit of those entitled to share in the estate until such time as litigation has been finalised. The administrator’s appointment is usually limited to the duration of the litigation proceeding and will only end when a judgement has been made by the Court and a full Grant (or other order of the Court) can be made.
This type of application is commonly seen where there is litigation in relation to the validity of a Will.
Letters of Administration – Ad Litem
A grant of letters of administration ad litem enables an administrator to represent the deceased estate in litigation. This is distinguishable from a pendente lite application as it enables the administrator to defend, commence and prosecute legal proceedings.
As such, the nature of this application is not solely to preserve estate assets but empowers an administrator to provide instructions where the estate is or about to be party to a proceeding and is effective until the dispute is resolved and is usually granted where urgent action is required in relation to the litigation to protect the estate and there is insufficient time to apply for a full Grant.
Unusual grants
Beyond limited grants, the Court is empowered to make a grant of representation in unusual circumstances which become apparent after a person dies.
These include:
Letters of Administration – Durante minore aetate
A grant of letters of administration durante minore aetate is made in circumstances where an executor appointed under a Will is a minor. An executor or person applying for a grant of representation must be able to legally hold property to be able to administer an estate, which prevents minors from acting.
Where a minor is over the age of 12, they may elect to appoint an ‘appointee’ to act on their behalf or the Court may assign an administrator. The Court will not allow just anyone to step in the shoes of an executor. The appointment of administrator is limited until such time as the executor retains adulthood and is able to complete the administration of an estate.
Letters of Administration – De bonis non
A grant of letters of administration debonis non can be made when an executor or administrator dies or goes missing before they have fully administered an estate.
This application can only be made in specific circumstances relating to the missing or deceased executor.
Letters of Administration – Durante Dementia
A grant of letters of administration durante dementia can be made when there is no valid Will and the person who would otherwise be entitled to administer the estate does not have the capacity or loses capacity during the administration of an estate.
The person making this application must have standing; they must be a person who is entitled to benefit from the estate if the person otherwise entitled to apply for the Grant had died without a Will.
Letters of Administration – Durante Absentia
A grant of letters of administration durante absentia can be made when an executor or administrator has moved out of Victoria, or at the expiry of twelve months from date of death has not administered the estate. The court may appoint a creditor or person who has an interest in the estate to finalise the estate.
Our team has specialist expertise in unusual limited and urgent grants of representation.
Our Principal Lawyers are also regularly appointed as administrators of estates by the Court. For further information please contact our office on (03) 9646 4477.
