We know that dealing with the task of finalising someone’s affairs can be confronting and challenging and for a lot of people, this is unfamiliar territory and can be a challenging process, compounded by legal terminology that may be unfamiliar.
In Victoria, two key terms often encountered in this context are “Probate” and “Letters of Administration.” Both relate to the administration of a deceased person’s estate, but they serve different purposes depending on whether or not the deceased left a Will.
Here we aim to clarify the distinctions between Probate and Letters of Administration by providing information on when each is required and why.
Probate
Probate is the legal process which confirms the validity of a deceased person’s Will. Your Will appoints an executor who is responsible for applying for a Grant of Probate when required (will depend on your assets) as it provides them with the legal authority to administer the estate.
Here’s a closer look at the process:
Advertisement – The executor advertises their intention to apply for a Grant of Probate through the Supreme Court of Victoria. This allows the deceased’s creditors to make a claim on the estate, and also provides an opportunity for other interested parties to file an objection if they believe they have a claim to the estate.
Application for Probate – The executor files an application with the Supreme Court of Victoria which includes the original Will, the Death Certificate, and a detailed inventory of the deceased’s assets and liabilities.
Grant of Probate – Once the Court is satisfied that the Will is valid and the application is correct, it issues a Grant of Probate. This document gives the executor the legal power to manage, administer and distribute the estate according to the terms of the Will.
Administration of the Estate – With the Grant of Probate, the executor can collect, sell or transfer the deceased’s assets, pay any debts and taxes, and distribute the remaining assets to the beneficiaries named in the Will.
Letters of Administration
When a person dies without leaving a valid will, the estate cannot be managed through a Grant of Probate. Instead, a similar process called Letters of Administration is required.
Here’s how it works:
Advertisement – As with Probate, an administrator (the person applying) advertises their intention to apply for a Letters of Administration through the Supreme Court of Victoria. This allows the deceased’s creditors to make a claim on the estate, and also provides an opportunity for other interested parties to file an objection if they believe they have a claim to the estate.
Application for Letters of Administration – An interested party (being the administrator), often the next-of-kin, applies to the Supreme Court of Victoria for Letters of Administration. This application includes details as to who is entitled to benefit to the estate under intestacy laws, the Death Certificate and an inventory of the deceased’s assets and liabilities.
Grant of Letters of Administration – If the court is satisfied with the application, it issues Letters of Administration which grants the administrator the legal authority to administer the estate.
Administration of the Estate – The administrator manages the estate and collects, sells or transfers the deceased’s assets, pays any debts and taxes paying off debts and distributes the remaining assets according to the laws of intestacy.
Key Differences
While both Probate and Letters of Administration achieve the appointment of someone to manage the estate of a deceased person, there are key differences:
Existence of a Will – Probate is required when there is a valid Will, whereas Letters of Administration is only needed when there is no Will or the Will is deemed invalid;
Role and Appointment – An executor named in the Will applies for Probate. While it is an administrator, usually the next-of-kin who applies for Letters of Administration when there is no Will.
Distribution of Assets – As a Grant of probate is issued in accordance with a Will, the estate is therefore distributed by the executor as specified in the Will. Under Letters of Administration, the administrator distributes the assets according to intestacy laws.
How we can help you navigate the difference
Understanding whether Probate or Letters of Administration is required or not is crucial for the efficient and legal administration of an estate. Whether you are named as an executor in a Will or need to apply for Letters of Administration due to an intestate estate, knowing what each process entails will enable you to fulfil your duties effectively.
Our Wills and Estates Team works with our clients to ensure the process of managing and administering a deceased estate is done correctly, efficiently and with as little stress for our clients as possible. For more information, you can contact us on 03 9614 7111 or email us at melbourne@nevettford.com.au.