If you're a beneficiary, executor or administrator of a Will, it's important that you have some knowledge about probate and letters of administration. These are legal processes after someone dies in Australia. These ensure the proper management and distribution of a deceased person's assets, whether or not they left a valid will.
Seeking advice from a Wills and estate lawyer about probate and other legal requirements would be a great help. For now, let's look at five key facts about probate and letters of administration in Australia.
Fact #1: Probate Confirms the Will and Appoints the Executor
Probate is the legal process by which the Supreme Court confirms the will is valid and appoints the executor named in the will to administer the estate.
The court issues a document called a Grant of Probate which is proof that the executor has the legal authority to access, manage and distribute the deceased's assets according to the will. This grant is often required by banks, aged care facilities, share registries and other institutions before they will release or transfer assets held in the deceased's name.
Probate is usually required when the deceased owned significant assets in their own name, such as real estate or large bank accounts. However, assets held jointly (such as a home owned with a spouse as joint tenants) pass automatically to the surviving owner and do not form part of the probate estate.
Fact #2: Letters of Administration When There is No Will
If someone dies intestate, that is, without leaving a valid will – probate can't be granted because there is no will to validate. Instead, an eligible person (usually the deceased's closest living relative) must apply to the Supreme Court for Letters of Administration.
This legal document appoints an administrator to manage and distribute the estate according to the laws of intestacy in the relevant state or territory.
The hierarchy of who can apply for letters of administration generally starts with:
- the spouse or de facto partner,
- the children,
- the grandchildren,
- the parents,
- the siblings and so on,
moving through increasingly distant relatives if necessary.
In some cases, letters of administration may also be required if there is a will but the named executors are unable or unwilling to act.
Fact #3: The Application Process Varies by State and Territory
Each Australian state and territory has its own laws and procedures for probate and letters of administration.
While the principles are similar, there are important differences in application requirements, fees and process. In some states (Victoria, New South Wales and South Australia), you can apply for probate online, in others, you'll need to lodge documents in person.
In NSW, you can start your probate application by creating an Online Registry Account. Afterwards, you can continue to Probate. Learn more about Probate here.
The required documents are usually the original will (for probate), death certificate and statement of assets and liabilities.
For letters of administration, you'll need to show a thorough search for a will has been done and publish a "Notice of Intended Application" on the Supreme Court's website for 14 days before lodging your application.
If the deceased had assets in multiple states or territories, a grant of probate or letters of administration may need to be "resealed" in each jurisdiction for it to be effective there.
Fact #4: Notifying Creditors and Identifying Beneficiaries
Whether applying for probate or letters of administration, the process involves several steps to protect the interests of creditors and beneficiaries:
- Notice to Creditors. Publishing a notice of the intended application gives creditors an opportunity to make claims against the estate before assets are distributed. This step helps prevent disputes and ensures debts are paid from the estate before beneficiaries receive their inheritances.
- Identifying Beneficiaries. Executors (for probate) or administrators (for letters of administration) must identify all eligible beneficiaries. If there is a will, the beneficiaries are those named in it. If there is no will, the beneficiaries are determined by the laws of intestacy, which set out a strict order of priority among relatives.
- Asset Collection and Distribution. The executor or administrator collects the deceased's assets, pays debts and taxes, and distributes the remaining assets to the rightful beneficiaries.
Fact #5: Probate and Letters of Administration Not Always Required
Not every estate requires a grant of probate or letters of administration. Whether these processes are required depends on the nature and value of the deceased's assets and the policies of the institutions holding them.
For example, if the deceased's assets are minimal or held jointly, institutions may release funds or transfer ownership based on certified copies of the death certificate and will without requiring probate.
Major banks and financial institutions usually require probate or letters of administration if the value of the assets exceeds a certain threshold (often around AUD 50,000).
Assets such as life insurance policies or superannuation paid directly to a nominated beneficiary or assets held in trust usually do not form part of the deceased's estate and can be transferred without probate.
Get Assistance from JB Solicitors' Estate Lawyers
Probate and letters of administration are two important legal processes in Australia for dealing with a deceased person's estate. These require the guidance of Wills and estate lawyers from JB Solicitors.
Probate applies when there is a Will; letters of administration apply when there is no will or no executor. Both involve court applications, notice to creditors, and identifying beneficiaries, but the process varies by state and territory.
Not all estates require these processes—it depends on the type and value of assets involved. Knowing this can help executors, administrators, and families navigate the often complicated tasks that arise after someone dies.
For further information and legal advice about estate law in Australia, contact us today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
