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 two things:
a) whether they left a Will or not; and
b) what assets did they have.
The answers to two things will determine what you need to do and which paths you need to take in terms of dealing with someone’s assets and affairs once they have pass away. In this article, we will explore the meaning of Probate and look at Probate vs Letters of Administration. We will also cover when Probate is required and when Letter of Administration is required as well as how long each of the processes might take.
What does Probate mean? How do I know if Probate is 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 are valid. For a document to be a valid Will it needs to comply with the requirements of the law in each jurisdiction. This is why we talk so often about the need for a properly drafted Will.
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 Will. So, if you have a Will and you go through this process 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 is 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 asset of the deceased. This is because acting on a Grant of Probate can protect the assets holder from any claim if the validity of the Will later is disputed.
Probate is only 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 about who has the right to deal with your assets and making sure the administration after your death is smooth and efficient.
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.
Do I need Letters 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.
When there is a Will, anyone can be appointed Executor in the Will who then applies for Probate. With Letters of Administration, only people who are entitled to share in the estate can apply for a Grant of Letters of Administration and to be appointed as administrator of a deceased estate.
It is also important to remember that a creditor can also apply to be an appointed administrator. This is because they have an interest in the estate. So, it is not just the beneficiaries. If anyone has an interest in the estate, they have to prove their interest and entitlement to the Administrator.
When Letters of Administration are involved, it is a bit more complex than a straightforward Grant of Probate because when you have a Will you can work out with the Will and the Court who the willmaker wanted as the Executor and who has the authority to deal with the estate. But with Letters of Administration someone has to apply for and prove their entitlement.
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 act 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 under the Will and distribute the estate in accordance with the Will.
How long does Probate or Letters of Administration take?
When someone passes away there are two stages. The first stage is obtaining the relevant Grant, whether it be a Grant of Probate or Grant of Letters of Administration. 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.
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. The deceased estate is collectively referred to as the ‘estate’ and the estate refers to the deceased’s assets and their affairs. Meaning, it is not just about distributing the assets to the beneficiaries.
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. It is a big role because essentially anything that the deceased had a hand in, needs to be dealt with.
These dealings may be complicated or can be quite straightforward. This is why it is important to have proper estate planning in place because too many people don’t realise that estate planning is not just about documenting who you want to inherit your estate. It is about getting advice as to how to structure your assets and also to determine what actions you need to take in order to make it easier for your Executor or other to administer your estate.
So, there is no straightforward answer for how long probate and letters of administration takes 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. Plus if there is a dispute or an issue where there is a Will but some beneficiaries don’t agree, that can cause delays too. If however there was a matter with a sole Executor who is also the beneficiary and there are no creditors and no disputes, then it will be straightforward and may take roughly a few months, depending on the assets and the asset holder. But more complex situations will make the administration of the estate more time consuming and costly.
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.
The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate processes like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.