If your spouse has died without a valid Will, you cannot simply “carry on” dealing with their assets.

Before insurance companies and/or banks release funds, before property can be sold, and before anything is distributed, someone must be appointed by the High Court.

If you are the widow(er), you will usually apply for Letters of Administration.

Before you do that, there is one important decision to work through properly — whether you will make a claim under the Property (Relationships) Act 1976 (PRA), or take what you receive under the Administration Act 1969.

That choice affects what you receive, and what your children receive.

This article explains what to consider, step by step.

Step 1: Confirm There Is No Will

Before applying for Letters of Administration, you must be satisfied there is no valid Will.

That means:

• Searching the house and personal papers

• Checking with any previous lawyers

• Checking with Public Trust or trustee companies

• Confirming no later Will exists

The Court requires you to swear that reasonable searches have been made.

If a Will is later discovered, the grant may need to be corrected.

Step 2: Understand What Intestacy Provides

If there is no Will, the estate is divided under the Administration Act 1969.

If you are the widow(er) and there are children, you receive:

• All personal chattels

• A statutory legacy (currently $155,000)

• One-third of the remaining balance

Your children share the remaining two-thirds equally.

This applies automatically unless you choose a different path under the PRA.

There is no discretion in that division. It is a fixed entitlement under the Administration Act.

Step 3: Consider Whether to Make a PRA Claim

Under section 61 of the Property (Relationships) Act 1976, you must choose between:

Option A:
Apply for division of relationship property under the PRA.

Option B:
Decline to apply under the PRA and instead take your entitlement under the Administration Act.

You cannot take both.

Step 4: What Happens If You Do Not Apply Under the PRA (Option B)

If you choose not to apply under the PRA:

• All estate property is pooled together.

• The Administration Act formula applies.

• The children are entitled to their fixed share.

In some estates, that produces a sensible and workable result.

In others — particularly long marriages where most assets were accumulated together — it may not reflect how the property was built up.

Step 5: What Happens If You Apply Under the PRA (Option A)

If you elect to apply under the PRA:

1. Relationship property is identified.

2. The starting point is equal sharing.

3. You receive your half of that relationship property first.

Only your late wife's/husband’s half then forms part of the estate for distribution.

That can significantly reduce what is left for division under intestacy.

For example:

• If most assets are relationship property from a long marriage,

• An equal division under the PRA may leave a smaller estate,

• Which means the children’s entitlement is calculated on a smaller pool.

This is why the election matters.

Step 6: Work Through the Numbers Before Filing

Before you apply for Letters of Administration, it is sensible to:

• List all assets

• Identify which are relationship property

• Identify any separate property

• Estimate values

• Compare the outcome under both options

This is not about choosing one outcome over another for emotional reasons. It is about understanding the financial difference before making a legal election.

Step 7: Consider the Children’s Position

If you take under intestacy, your children receive a defined share.

If you apply under the PRA, the size of the estate may reduce before their share is calculated.

Children cannot prevent you from making a PRA election. It is your statutory right.

However, if you are also applying for Letters of Administration, you are stepping into a legal role that carries duties. As administrator, you must:

• Act honestly

• Keep proper accounts

• Follow the statutory rules

• Avoid favouring one beneficiary improperly

Clear communication with adult children early on can prevent confusion later.

Step 8: Timing of the Election

The PRA requires a formal notice of choice. There are time limits.

Do not assume that “doing nothing” preserves all options.

The election should be documented properly, within the required timeframe.

Step 9: Then Apply for Letters of Administration

Once you understand which path you are taking, the application to the High Court can proceed.

The application will include:

• Confirmation of death

• Confirmation there is no Will

• Details of marriage

• Full details of the children

• Estimated gross value of the estate

Once granted, you can:

• Close or transfer bank accounts

• Sell property

• Collect funds

• Pay debts

• Distribute the estate

Distribution should not occur immediately. Statutory waiting periods and potential claims must also be considered - this is usually a minimum of six-months.

Putting It Together

When there is no Will, two separate processes intersect:

1. The PRA election (your personal entitlement as surviving spouse), and

2. The administration of the estate (your role if appointed).

The key is to work through the financial position first.

Once the position is clear, the paperwork becomes straightforward.

If you are in this situation, the goal is not to rush to the Court. It is to:

• Confirm the assets,

• Compare the two legal options,

• Make a clear election, and

• Then proceed with the grant properly.

Handled in the right order, the process is manageable and predictable.