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Probate vs Letters of Administration

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If you have faced the task of dealing with a loved one’s estate, then you may have been asked by a bank or other third party to provide either a Grant of Probate or Letters of Administration. One of the most common questions we’re asked by clients is ‘what does this mean?’ and ‘what’s the difference between the two?’.

Both a Grant of Probate or Letters of Administration are legal documents that authorise the executors or other persons to administer the deceased person’s estate.

In most cases, it depends on the assets of the estate as to whether Probate or Letters of Administration are required. In the ACT and NSW, wherever a person owns real estate solely or with another person as tenants in common, then Probate or Letters of Administration will be necessary before the property can be sold or transferred. In relation to other assets such as bank accounts, shares, life insurance and superannuation, each organisation has its own thresholds as to when it will require Probate or Letters of Administration.

When you have an initial chat with a succession lawyer, one of the key questions they will ask will be “is there a Will?”. It is this question which can be fundamental in determining whether you will need to apply for Probate or Letters of Administration.

Grant of Probate

What is a Grant of Probate?

A Grant of Probate is a legal document that authorises an executor to administer the deceased person’s estate in accordance with the terms of the Will.

Who can apply?

An executor or executors named under the Will can apply for a Grant of Probate. This includes substitute executors if the first-named executor is unable to apply.

Grant of Letters of Administration

What are Letters of Administration?

There are two distinct types of applications for Letters of Administration:

(1) Letters of Administration – Without Will

You guessed it – This particular application is made where the deceased died without leaving a valid Will. This is also referred to as the deceased having died ‘intestate’.

As there is no Will directing how the estate is to be distributed, the rules of intestacy will instead apply. The rules of intestacy vary from jurisdiction and will determine which family members receive the estate according to a formula.

(2) Letters of Administration – with the Will annexed

The circumstances in which this type of application is made are more nuanced then the title would let on. This sort of application would be appropriate in circumstances where:

(a) the deceased left a Will but did not appoint an executor;
(b) the deceased left a Will which appoints an executor, who –
i. chooses not to be the executor and renounces Probate;
ii. has died; or
iii. is incapacitated and not able to act as the executor; or
(c) you are unable to locate the original Will and can only provide a copy to the Court.

Who can apply?

In most cases, it will be one or some of the major beneficiaries in the Will (if there is a Will) or a member of the deceased’s family if there is no Will. Before applying to become an administrator, there are a number of requirements regarding giving notices and obtaining consents, so it is a good idea to see a lawyer to help you with this process.

It should be said that the rights and duties of someone who is granted Letters of Administration are considered the same as if the person had been appointed as an executor.

How we can help

DDCS has a specialised Wills and Estates Team who can help you navigate through the process after a loved one’s death. We can give you advice on whether a Grant of Probate or Letters of Administration are required, we can assist you with the process and Court paperwork, and we can give you advice about the duties of an executor or administrator.

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