Grants of Probate and Letters of Administration
Grants of Probate and Letters of Administration are both forms of authorisation from the Supreme Court in relation to deceased estates, however, they are required under different circumstances. When a person dies with a valid will, it may be necessary for the person named as executor in their will to apply for a Grant of Probate. When a person dies without a valid will, and there are assets to distribute, then an application needs to be made for Letters of Administration. The application process for both a Grant of Probate and Letters of Administration can be quite complicated and differs between states and territories, so it is not possible to provide a single definitive guide. Some general observations about the differences between a Grant of Probate and Letters of Administration are set out below, but specific advice should be sought from a solicitor in the jurisdiction where the grant is required.
What Is A Grant Of Probate?
When a person dies with a will, it is often necessary to apply for a Grant of Probate from the Supreme Court. A Grant of Probate is a court document that recognises that an individual has the authority to administer the deceased estate. The document confirms that the will is valid and that the executor should distribute the assets according to its provisions.
When Is A Grant Of Probate Required?
An institution (for example, a bank) may require a Grant of Probate before releasing assets, even if there is a valid will in place. This is because the bank or other institution does not want to risk releasing the asset based on a will that might later turn out to be invalid. The bank is satisfied with a court-ordered Grant of Probate that confirms the validity of the will and instructs the bank to comply.
Institutions will often have a policy that smaller assets (for example, bank accounts containing less than $10,000) can be released without a Grant of Probate as there is only a small level of risk.
A Grant of Probate is usually only required when the testator owned assets in their sole name. If the deceased’s only major asset was a jointly owned house held together with their spouse, there is no need for a Grant of Probate because ownership of the house will automatically be passed on to the surviving owner. Similarly, with a joint bank account, the surviving signatory will have full ownership of the account. In many jurisdictions, there are special rules in relation to real property: in these states and territories, even if a property is owned solely in the name of the deceased, the registry can transfer the property without a Grant of Probate.
An executor should contact the institutions holding the deceased’s assets to enquire whether a Grant of Probate is required. Alternatively, a solicitor can help an executor understand whether a Grant of Probate is needed, based on the nature and value of the assets left in the estate.
Who Applies For A Grant Of Probate?
The executor usually applies for a Grant of Probate from the Supreme Court. It may be helpful to seek legal advice in completing the application but it is also possible for an executor to complete the application without assistance.
What Is A Grant Of Letters Of Administration?
When a person dies intestate (without a valid will), someone needs to apply to the court for a Grant of Letters of Administration. As there is no will, no executor has been appointed to administer the estate. As a result, Letters of Administration are required to give someone the authority to distribute the assets according to the rules of intestacy.
Letters of Administration are also needed where there is a valid will, but someone other than the executor named in the will is applying for authority to distribute the estate. In this case, the court will grant Letters of Administration, essentially giving the applicant the power to act as an executor and administer the estate.
Who Can Apply For Letters Of Administration?
Usually, the person who is likely to inherit the deceased’s assets will apply for Letters of Administration. The court commonly grants Letters of Administration to the spouse or child of the deceased, or to a Trustee where there is no next of kin.
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