Probate vs Letters of Administration: What’s the Difference?
When someone passes away, their assets, property and financial affairs need to be properly managed before their estate can be distributed to beneficiaries.
Two terms you may come across during this process are Probate and Letters of Administration.
While both involve obtaining legal authority to administer a deceased estate, they apply in different circumstances. Understanding the difference can help executors, administrators and family members determine what steps may need to be taken after the death of a loved one.
What Is Probate?
Probate is generally required when a person passes away leaving a valid Will and has appointed an executor to administer their estate.
A Grant of Probate is issued by the Supreme Court and confirms the executor’s authority to deal with the deceased person’s estate in accordance with the Will.
The executor’s responsibilities may include:
- Identifying and collecting the deceased’s assets
- Contacting banks and other financial institutions
- Paying outstanding debts and liabilities
- Managing, transferring or selling property
- Attending to relevant taxation and financial matters
- Distributing the remaining estate to beneficiaries in accordance with the Will
Banks, financial institutions and other asset holders may require a Grant of Probate before they will release or transfer certain assets belonging to the deceased.
However, not every deceased estate requires Probate. Whether a grant is necessary can depend on the type, value and ownership structure of the deceased’s assets.
For example, assets held jointly may pass directly to the surviving joint owner rather than forming part of the estate to be distributed under the Will.
What Are Letters of Administration?
Letters of Administration are generally required when a person passes away without leaving a valid Will. This is known as dying intestate.
Without a Will appointing an executor, an eligible person must apply to the Supreme Court to be appointed as the administrator of the deceased estate.
Once Letters of Administration are granted, the administrator has legal authority to deal with the estate.
Their responsibilities may include:
- Identifying and collecting estate assets
- Contacting relevant banks and financial institutions
- Paying outstanding debts and expenses
- Managing or selling property where required
- Finalising relevant financial and taxation matters
- Distributing the remaining estate to those legally entitled to inherit
Where there is no valid Will, the deceased’s estate is distributed according to the applicable intestacy laws, rather than according to assumptions about how the deceased may have wanted their assets distributed.
In NSW, the rules of intestacy are primarily contained in the Succession Act 2006 (NSW).
Probate vs Letters of Administration: What’s the Main Difference?
The easiest way to understand the distinction is:
Probate generally applies where the deceased left a valid Will and an executor is available to administer the estate.
Letters of Administration generally apply where the deceased did not leave a valid Will and an administrator needs to be legally appointed.
| Probate | Letters of Administration |
|---|---|
| Generally involves a valid Will | Commonly required where there is no valid Will |
| The estate is usually managed by an executor | The estate is managed by an administrator |
| The executor is appointed in the Will | The administrator is authorised by the Court |
| The estate is distributed according to the Will | The estate is generally distributed according to intestacy laws |
Although the legal process differs, executors and administrators ultimately perform many similar duties when administering an estate.
What If There Is a Will but the Executor Cannot Act?
The existence of a Will does not always mean that a standard Probate application will be possible.
For example, a valid Will may exist but:
- No executor was appointed
- The named executor has passed away
- The executor does not wish to act
- The executor is unable to act
- There are other circumstances preventing the executor from obtaining Probate
Depending on the circumstances, an eligible person may instead need to apply for Letters of Administration with the Will Annexed.
If granted, the administrator is authorised to administer the estate, generally in accordance with the terms of the Will.
This is one of the reasons it is important to establish not only whether a Will exists, but also whether the executor named in the Will is willing and able to act.
Who Can Apply for Letters of Administration?
Where someone dies without a valid Will, the person applying for Letters of Administration will generally be someone who is entitled to receive all or part of the estate under the intestacy rules.
Depending on the deceased’s circumstances, this could include a spouse, de facto partner or another eligible relative.
The appropriate applicant can depend on the deceased’s family circumstances and the people who are entitled to inherit from the estate.
Where multiple family members may have an interest in the estate, determining who should apply can become more complicated. Obtaining legal advice can help clarify who is entitled to make the application and what documentation may be required.
Do You Always Need Probate or Letters of Administration?
No. A formal grant is not necessarily required for every deceased estate.
Whether Probate or Letters of Administration is needed can depend on several factors, including:
- The overall value of the estate
- The types of assets owned by the deceased
- How those assets were legally owned
- Requirements imposed by banks and financial institutions
- Whether the deceased owned real estate
- Whether property was held solely, jointly or as tenants in common
Some organisations may agree to release lower-value assets without requiring a formal grant.
Real estate can make matters more complex. For example, where NSW property was held solely in the deceased’s name or as a tenant in common, a grant will generally be required before the property can be properly dealt with as part of the estate.
Because every estate is different, it is important to establish what assets the deceased owned and how those assets were held before deciding which application is necessary.
How Long Do You Have to Apply?
In NSW, an application for Probate or Letters of Administration should generally be filed with the Supreme Court within six months of the deceased’s death.
Where an application is made outside this timeframe, the Court will generally require an explanation for the delay.
There can be a number of steps involved before an application is ready to be filed, including locating the original Will where applicable, identifying assets and liabilities and preparing the necessary documents.
Starting the process early can therefore help reduce unnecessary delays in administering and ultimately distributing the estate.
What Happens After Probate or Letters of Administration Are Granted?
Receiving the grant is an important step, but it does not necessarily mean that the estate administration process is finished.
Once Probate or Letters of Administration have been granted, the executor or administrator can generally begin dealing with estate assets that require formal authority.
Depending on the estate, the next steps may include:
- Collecting or transferring assets
- Closing or dealing with bank accounts
- Paying outstanding debts and estate expenses
- Managing, transferring or selling real estate
- Addressing taxation or other financial obligations
- Keeping appropriate estate records
- Determining the beneficiaries or people entitled to inherit
- Distributing the estate when it is appropriate to do so
Larger or more complex estates may involve additional legal, financial and administrative considerations.
Why Legal Guidance Can Help
Administering a deceased estate can involve significant responsibilities, particularly when property, substantial assets or multiple beneficiaries are involved.
Additional complications can arise where:
- There is uncertainty about whether a Will is valid
- The original Will cannot be located
- An executor is unwilling or unable to act
- Someone has died without a Will
- There are multiple potential beneficiaries
- Family members disagree about the estate
- Property needs to be transferred or sold
- There are questions about who is legally entitled to inherit
Executors and administrators have important responsibilities when dealing with estate assets, debts and distributions. Obtaining advice early can help you understand the process and your obligations before taking significant steps.
At Estates Now, we assist clients with Probate, Letters of Administration and the broader deceased estate administration process.
Our Principal Lawyer, Abbey John, and the Estates Now team can guide you through the relevant application and help you understand your responsibilities as an executor or administrator.
Need Help With Probate or Letters of Administration?
Whether you have been appointed as an executor, need to apply for Letters of Administration, or are unsure which process applies to your circumstances, you do not have to navigate the estate administration process alone.
Estates Now can assist you in understanding the appropriate next steps, preparing the relevant application and progressing the administration of the estate.
Need advice about Probate or Letters of Administration? Book a consultation with Estates Now to discuss your circumstances with our team.
This article provides general information only and does not constitute legal advice. The appropriate Probate or estate administration process will depend on the individual circumstances of the deceased and their estate. You should obtain legal advice specific to your situation.
