When a person dies, the first question people generally ask is, ‘What do I have to do?’ As an experienced wills and estates lawyer, I often say what must be done after a person has died, depends on the answer to these two questions:
- Did they leave a Will?
- What assets did they have?
The answers to these questions will determine if you will need to apply for Probate or Letters of Administration as the first part of the process in dealing with someone’s assets and affairs once they have passed away.
We will explore:
- What is a Grant of Probate?
- What is a Letter of Administration?
- Who can apply for Letters of Administration or Probate?
- How long each of the processes may take
What is Probate and When Is Probate Required?
When someone passes away or dies, you often hear the word ‘Probate’. This word comes from the Latin word ‘to prove’. So Probate is the process of proving a document to be a valid Will. This process is done through the Supreme Court and once completed the Supreme Court will certify the Will’s validity by issuing a Grant of Probate of the Will.
This process is required because not all documents claiming to be a Will will be considered valid by the Court. For a document to be a valid Will it needs to comply with the requirements of the law in each jurisdiction (state or territory of Australia). This is why we talk so often about the need for a properly drafted Will.
Related: Will it be Right when you Write your Will? Common Mistakes to Avoid
The process of proving a Will gives people the opportunity to come forward with any objections to probate being granted on the Will for example the existence of a later Will. The existence of a later Will is important because whenever someone makes a new Will, they generally revoke all previous Wills. So, if you have a Will and apply for a grant of probate, the process allows people to come forward and say, hold on we might need to stop for a moment here, you are trying to prove a Will dated 2010 but I have a Will for the deceased dated 2015. The process also gives people the chance to object to the validity of the Will in terms of the capacity of the deceased to make the Will or the circumstances surrounding the signing of the Will.
Most asset holders such as the Banks or the Land Titles Office, will require a Grant of Probate before they release funds or allow the executor to deal with the assets of the deceased. This is because acting on a Grant of Probate can protect the asset holder from any claim if the validity of the Will is later disputed.
Probate is applied for if there is valid Will and a validly appointed executor in that Will. This is why getting your Will professionally drafted is important because a will does not just determine who gets your estate but who has the right to deal with your assets and making sure the administration of your estate is free from problems.
If you do not have a valid Will or you have a Will that does not have a validly appointed Executor, or the validly appointed Executor has died, then you may need to obtain a Grant of Letters of Administration.
What is a Letter of Administration?
There are generally two types of Letters of Administration. Letters of Administration with Will and Letters of Administration with no Will. If there is a will but no validly appointed Executor, or the validly appointed Executor has died then someone needs to apply for Letters of Administration to be administrator and administer the estate in accordance with the Will. If someone passes away without a Will, then they have died ‘intestate’ and someone needs to apply to be appointed as Administrator of the estate. It is important to remember that the Administrator and the Executor have the same role, duty and obligations. The only difference is the Executor is appointed by the Will.
Who can apply for Letters of Administration or Probate?
When there is a Will, anyone appointed Executor in the Will can apply for Probate. With Letters of Administration, only people who have a sufficient interest in the estate can apply for a Grant of Letters of Administration.
It is also important to note that a creditor can also apply to be an appointed administrator. This is because they have an interest in the estate.
The Difference Between Probate and Letters of Administration
In addition to the differences outlined above, when Letters of Administration are involved, it is a little more complex than a straightforward Grant of Probate. However, regardless of whether it is Letters of Administration or Probate or whether it is the Executor or Administrator managing the estate, they have the same duties and obligations. An Executor’s ultimate duty is to act in the best interests of the beneficiaries under the Will and distribute the estate in accordance with the Will. Where there are Letters of Administration, the administrator too has to act in the best interests of the beneficiaries and distribute the estate in accordance with the Will (if there is one) or in accordance with the relevant intestacy provisions if there is no Will.
How Long Does Probate Take? How Long Does Letters of Administration Take?
When someone passes away there are two stages regardless of which Grant is required:
- Stage 1: Obtaining the relevant Grant (Probate or Letters of Administration)
- Stage 2: Administering the Deceased Estate
Timeline for Obtaining Either Grant
A Grant of Probate or Letters of Administration generally takes anywhere from four weeks to a few months. The minimum period is 14 days because you will need to advertise your intention to apply for a grant for at least 14 days before you can make that application.
You need a death certificate in order to apply for the grant and a death certificate is not issued until you have a funeral. After the funeral it takes anywhere between two to eight weeks, depending on the jurisdiction you are in and the capacity of the Births, Deaths and Marriages office at the time as well.
Timeline for Administration of Deceased Estate
The second stage is to administer the deceased estate, which is generally speaking the longest part of dealing with someone’s affairs once they pass away.
This can include paying any debts or liabilities, defending any claim or actions against the deceased and notifying all the relevant people that the deceased has passed away.
These dealings may be complicated or can be quite straightforward. This is why it is important to have proper estate planning in place. A proper estate plan will make it easier for your Executor or others to administer your estate.
So, there is no straightforward answer for how long it takes to administer an estate because it really depends on two questions. The first question is ‘What are the assets?’ and the second is, ‘What other affairs need to be managed?’
If the asset mix is quite complex and there are a lot of moving parts then it is going to take the Administrator or Executor longer. If there is a dispute, that can cause delays too.
Seeking Probate or Letters of Administration? Start Here.
Now you know the answer to the question ‘What is a Letter of Administration?’ and how it is different to Probate.
As a wills and estate lawyer, my best advice to avoid an extended probate and administration process, is to seek good legal advice to support you in the administration of the estate.
Related: What is Probate? A Practical Guide to Getting a Grant of Probate
Our team are highly experienced and specialise in helping Executors or close relatives through processes like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in this form and our team will be in touch.
