Probate or Letters of Administration – Which One Do I Need?

Where the deceased left a Will, Probate will be applied for in the Supreme Court of NSW. The Application for Probate will be commenced by the person named as Executor in the Will and will seek confirmation from the Court that the Will is a valid document, that the person named as Executor has the power to act in their capacity and can then administer the estate in accordance with the Will.

Where the deceased did not leave a Will, or a Will cannot be located, Letters of Administration will be applied for in the Supreme Court of NSW. In an Application for Letters of Administration, the next of kin, such as a spouse, child or parent will seek to be appointed as Administrator of the estate and distribute the estate in accordance with the rules of intestacy.

The rules of intestacy provide who is entitled to the deceased’s estate based on their relationship to the deceased. As a general rule, this is as follows:-

  1. Spouse (including de facto spouse);
  2. Children;
  3. Parents;
  4. Siblings;
  5. Grandparents;
  6. Aunts and uncles;
  7. First cousins; and
  8. NSW Government.

If there are multiple people in a category, such as children, then the estate would be distributed equally between those in that category.

One of the complexities in Letters of Administration and why it is important to ensure you have a Will, is that the Court has the power to determine who the assets should be distributed to based on these rules. This may not be appropriate in all circumstances and may not be in accordance with the wishes.

Once Probate or Letters of Administration has been granted, then the Executor (Probate) or Administrator (Letters of Administration) can call in the assets of the estate, such as selling property and closing bank accounts.

Following receipt of the assets, the liabilities of the estate can be paid, and distribution can be made to the beneficiaries listed in the Will or determined by the Court in Letters of Administration.

If one of your loved ones has passed away and you need assistance in determining which Application or whether an Application needs to be made, please do not hesitate in contacting our office and one of our friendly team can help guide you.

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