If the executor named in a Will cannot act or is unwilling to act and there is no provision for a substitute executor, the question arises as to who can apply for a Grant of Administration (Probate or Letters of Administration) to administer the estate in the original executor’s place?

What if the Will does not appoint an executor?  What if there is no Will?

It is sometimes assumed that any close family member of the deceased can apply to administer the estate.  This is not necessarily the case.

The Administration and Probate Act, 1919 (“the Act“) and Probate Rules, 2015 (SA) (“the Rules“) clearly set out who can apply to fulfil this role, namely:

If there is a Will, in the following order:

  1. The named executor;
  2. Any person to whom a bequest is left to hold on trust for another person(s);
  3. A beneficiary to whom a life interest is given;
  4. A beneficiary entitled to a share in the residuary estate;
  5. A beneficiary entitled to a specific gift;
  6. A beneficiary entitled to a specific gift upon the happening of a condition. (Rule 31)

If there is no Will, in the following order provided the person applying is entitled to inherit something from the estate in accordance with Section 72G of the Act:

  1. The spouse (or domestic partner) of the deceased;
  2. The children (or grandchildren if their parent has died) of the deceased;
  3. The mother or father of the deceased;
  4. The brother or sister of the deceased (or their children if they pre-decease the deceased);
  5. Grandparents;
  6. Uncles and Aunts. (Rule 32)

The Rules allow for Grants of Administration to parents or guardians on behalf of children with priority to apply to administer the estate.  Administration is granted to the parent or guardian for the child’s use or benefit until the child attains the age of 18 years (Rule 42).

An executor or person entitled to apply for Probate or Letters of Administration may renounce their right to administration (Rule 48).  This will then clear the way for the next in line in the order of priority above to apply to administer the estate subject to the requirement that the next in line has a beneficial interest in the estate.

The South Australian Supreme Court1 is of the view that:

  • beneficiaries willing and able to act as administrators are preferred to trustee companies (such as the Public Trustee);
  • generally administration is granted to the person with the greatest interest as beneficiary; and
  • strong grounds are required to pass over an executor or administrator who has priority in the above lists.

1See two decisions of The Honourable Justice Gray handed down in February 2013 O’Loughlin (Deceased) (2013) SASC 20 and Michael Anthony Whelan (Deceased) (2013) SASC 18.

If you find yourself in a situation where an executor has died or does not wish to act; or, if there is no executor appointed or no Will, please contact Emma on 8362 6400 or email Emma Marinucci.  Join our mailing list to receive updates and advice on current issues.

  • Emma Marinucci

    About the author: Emma Marinucci

    Emma specialises in wills and deceased matters including disputed wills, contested estates and inheritance claims.

    Emma is a compassionate and skilled lawyer dedicated to her clients. Emma’s sole focus is to ensure that her clients receive the very best outcome possible.

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