Letters of Administration with the Will annexed is a grant made by the Supreme Court of Western Australia if there’s a valid Will but no executor able or willing to prove it. The Will still governs who gets what. The person the Court appoints is called an administrator rather than an executor.
When does administration with the Will annexed apply?
Administration with the Will annexed applies in three situations:
- the deceased left a Will but appointed no executor;
- the deceased appointed an executor who is not willing and competent to take probate; and
- the deceased appointed an executor who is resident out of Western Australia.
Take Harry and Sally again. Harry’s Will appoints Sally as his executor and leaves everything to their children Adam and Beth. Sally has since developed dementia and can’t take on the role. There’s a valid Will and there’s an executor named in it, but she isn’t competent to take probate, so Adam applies for a grant of Letters of Administration with the Will annexed.
Does the Will still decide who gets what?
Yes. The Will governs distribution exactly as it would if the executor had taken probate and the administrator is bound by its terms. The change is in who holds the office, not in who benefits. See What is probate?
Renunciation and reserving leave are different things
An executor who won’t act now has two ways of standing back. They have different consequences, so an executor should understand which one they’re signing.
| Renunciation | Leave reserved | |
|---|---|---|
| What the executor does | signs a renunciation of probate giving up the right to prove the Will | takes no part in the application, but the Court notes that the right to apply later is preserved |
| Who gets the grant | a substitute executor, or a beneficiary applying for Letters of Administration with the Will annexed | the other executor who is applying now |
| Applying later | the right to the office has been given up | the executor may come back and apply for a grant |
| When it’s used | an executor who will never act | two or more executors named and only one applying now |
What does the Court need to be satisfied of?
The Court needs to be satisfied that the document put before it is the deceased’s last Will and that the person applying is the right person to administer it. In practice that means showing:
- that the Will is the deceased’s last Will and was properly signed and witnessed;
- that the Will wasn’t revoked before the death;
- that no executor is able and willing to take probate;
- that the other people with an equal or better claim to the grant have consented in writing or have been given notice; and
- that you’ve sworn to the value of the assets and liabilities of the deceased as at the date of death.
What you have to gather to do that is the same material as any grant application. See How to apply for probate in Western Australia
Frequently asked questions
Can a beneficiary apply for administration with the Will annexed?
Yes. A beneficiary is a person interested in the estate, so a beneficiary can apply if there’s no executor willing or able to take a grant.
Is this the same as Letters of Administration on intestacy?
No. Administration on intestacy applies if there’s no valid Will and the estate is divided under the Administration Act. Administration with the Will annexed applies if there is a valid Will, but no executor who can follow it. The Will still controls the distribution. See What is Letters of Administration?
Will the administrator need a surety guarantee?
Possibly. A grant of administration can attract a guarantee where a beneficiary is under 18 or lacks capacity, where a beneficiary lives outside Western Australia with no agent here, or where the applicant lives outside Western Australia. See What is a surety guarantee?
We can apply for the grant if your executor can’t act
We work out which grant your estate needs, prepare the application and lodge it at the Court. Call us on (08) 9220 4490. Our current prices are published on our Letters of Administration service page.
Related: Administration Act 1903 (WA): executors and administrators
This article is general information about the law in Western Australia and isn’t legal advice. Your circumstances may turn on facts this article doesn’t deal with, so please get advice on your own estate.
