What if there is no executor named or able to act?

The law specifies who is able to step in and take on the role of administrator when there is no executor willing or able to act.

This may be as a result of the deceased dying without a will, the will containing no appointment of an executor, or all of the executors named in the will having died, lost their mental capacity or being otherwise unable or unwilling to take on the role.

The term ‘administrator‘ is the name used for this person who becomes the legal personal representative of an estate.

An administrator has a very similar role to an executor.

The person or persons who are entitled to act as administrator is set out in the Probate Rules 2015. In most instances, the person who is entitled to inherit the largest portion of the estate, whether according to the will or by the laws of intestacy, is able to act as administrator.

In some instances, the Attorney General, Crown, creditors of the deceased or personal representatives of other persons entitled to act, may be able to apply for the role of administrator.

At times, grants may be issued to an attorney of a person entitled to a grant if the person so entitled resides outside South Australia. Further grants may be issued to parents or a guardian of a minor, or to persons appointed as administrators or managers of a person who would be entitled to the grant but is incapable due to mental or physical incapacity.

What if the deceased person did not leave a will?

If a person dies without a valid will, he or she is said to have died “intestate“.

That person’s estate is then distributed in accordance with the law of intestacy (ie. the law that applies when a person dies without a valid will). This is set out in Part 3A of the Administration and Probate Act 1919.

If there is no will then that means no executor has been named as the deceased person’s legal personal representative. Instead, someone else will have to take on a similar role known as ‘administrator’.

The person who can take on the role of administrator is set out in rule 34 of the Probate Rules 2015.

Who is the administrator if the deceased person had no will?

Rule 34 of the Probate Rules 2015, sets out an order of priority as to who is entitled to a grant of letters of administration if a person died without a will.

The order is as follows:

  • the spouse or domestic partner of the deceased person, provided he or she survived the deceased person by 28 days;
  • a child of the deceased person, or a child of a deceased child of the deceased person;
  • a parent of the deceased person;
  • a sibling of the deceased person, or a child of a deceased sibling of the deceased person;
  • a grandparent of the deceased person;
  • an aunt or uncle of the deceased person, or any child of any deceased aunt or uncle of the deceased person.

If there is no person alive to inherit the deceased person’s estate, then the Attorney-General is entitled to administer the estate on behalf of the Crown.

If none of the above are able to act, then a creditor of the deceased person may apply to administer the estate.

Furthermore, a personal representative of any of the above persons (other than the Attorney-General) can also apply for a grant. However, the Court prefers administration to be granted to a living person instead of a personal representative of a deceased person, to a person not under a disability over a person under a disability, and to the child of a deceased person (or a child of a deceased child of the deceased person) over the personal representative of a spouse or domestic partner.

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