What is the difference between probate and letters of administration?
A Probate grant is a Supreme Court order, given to an Executor, that identifies the Executor as the person to deal with the deceased person’s estate. A Letter of Administration is given to someone who isn’t named as executor in the will. It’s usually a court appointed administrator. Applying for Letters of Administration can be time consuming and stressful. That’s why it’s important to seek expert legal advice when drafting your Will.
What Is an Executor of a Will in NSW?
An executor of a will in NSW is the person or people named by a will-maker to carry out their final wishes.
The executor can be a trusted friend or family member, an appointed professional such as a solicitor, or a trustee company.
The role of executor involves financial, legal and interpersonal skills. So it’s very important to choose wisely.
What is ‘Probate’?
Probate refers to the application made to the Supreme Court of NSW by the Executor (or Executors) named in the Will of the deceased.
Once the Court makes a Grant of Probate, the Executor named in the Will of the deceased is able to administer the Estate. The administration of the Estate includes gathering assets of the deceased Estate, paying the funeral costs and other debts of the Estate. The Executor will then distribute the remaining assets to the beneficiaries named in the Will. The Executors are also in charge of handling any challenges to the Will, such as family provision claims or claims that the deceased’s Will is not valid.
What are ‘Letters of Administration’
Letters of Administration also refers to an application made to the Supreme Court of NSW, where the Will of the deceased cannot be located or where there is a Will, but no Executor named in the Will or the Executor named has died or is unable to act as Executor.
A Grant of Letters of Administration means that the Administrator appointed by the Court can deal with the Estate in the same way an Executor would deal with the Estate, such as paying debts of the Estate and administering the Estate in accordance with the Will, or in accordance with the Laws of Intestacy if there is no Will.
Applying for Letters of Administration can be more time consuming and costly than applying for a Grant of Probate, as it involves more information being provided to the Court. This is why, it is so important to seek expert legal advice on your Will which can include ensuring that you name more than one Executor, so that your Estate will not be subject to a Grant of Letters of Administration.
If you are in the process of organising your Estate, make sure you receive expert legal advice from a lawyer who deals exclusively with Wills and Estates Law.