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April 29, 2015
Probate and Letters of Administration: What You Need To Know

By Aaron Kitson

When someone passes away, in most cases, an application must be made to the Supreme Court (Court) so that the deceased’s property may be dealt with appropriately.

What is Probate?

Probate is the process of applying to the Court to validate a deceased person’s Will by presenting the Will to the Court together with a prepared application in order to obtain a Grant of Probate.

What is Letters of Administration?

Letters of Administration is the process of applying to the Court for the appointment of a legal representative of a deceased’s estate where the deceased has not left a Will or where the deceased has left a Will but has no Executor.

So, who is responsible for applying to the Court?

The type of application required is determined by whether the deceased left a valid Will or not. The answer to this question will help identify the person responsible for applying to the Court.

‑ With a Will naming Executor – Grant of Probate

The Executor is the person or institution named in the deceased’s Will to carry out the terms of the Will.

The Executor therefore is responsible for applying to the Court for a Grant of Probate.

The applicant must prepare and file their application with the Court together with the Will of the deceased and the deceased’s death certificate.

If the applicant is successful, the Court will issue a Grant of Probate thereby validating the deceased’s Will, appointing the applicant as Executor and allowing the Executor to deal with the deceased’s property.

‑ With a Will but no Executor – Grant of Letters of Administration with Will annexed

There are occasions where a person passes away leaving a valid Will that does not name an Executor (i.e. the named Executor has predeceased the deceased) or the named Executor is unwilling or unable to apply for a Grant of Probate (i.e. the named Executor has a mental illness).

These applications can be quite complex as it is necessary to identify the appropriate person who may apply either on behalf of, or in the place of, the named Executor.

The applicant will usually be a beneficiary under the deceased’s Will but, in some cases, may be an appointed representative of an incapable Executor.

The applicant is not known as the Executor but, instead, the Administrator.

The applicant must prepare and file their application with the Court together with the Will of the deceased, the deceased’s death certificate and also further documents in support of the applicants standing.

If the applicant is successful, the Court will issue a Grant of Letters of Administration with the Will annexed thereby validating the deceased’s Will, appointing the applicant as the Administrator and allowing the Administrator to deal with the deceased’s property.

‑ No Will – Grant of Letters of Administration

Reasonable search and enquiry must be made to locate a deceased person’s Will.

If no Will can be located it is necessary to identify an appropriate person to make an application to the Court for a Grant of Letters of Administration.

These applications can be quite complex as it is necessary to identify the appropriate person to make the application

The applicant will usually be a beneficiary of the deceased’s estate and is known as the Administrator.

Beneficiaries of a deceased’s estate, where the deceased did not leave a Will, are determined by law.

The applicant must prepare and file their application with the Court together with the deceased’s death certificate and further documents in support of the applicants standing.

If the applicant is successful, the Court will make a Grant of Letters of Administration thereby appointing the applicant as the Administrator and allowing the Administrator to deal with the deceased’s property.

Once the Court has issued a grant, the Executor or Administrator may commence their administration of the deceased’s estate according to the Will of the deceased or according to law if the deceased did not leave a Will.

It is important to remember that there are instances where an application to the Court for a grant is not required. This will depend on the way in which assets of a deceased’s estate are owned.

Each estate is different and you may wish to consider speaking with us about your position before deciding whether it is necessary for you to obtain a grant or not.

If you require any assistance with your Will, Probate or Letters of Administration, please contact, Aaron Kitson, Associate at LBH on akitson@lbandh.com.au