The passing of a loved one is an emotional and stressful time. Whilst dealing with the grief of their passing, most people feel the burden of legal processes often involved in dealing with the deceased’s estate. This can include obtaining a Grant of Probate to distribute the estate according to the deceased’s wishes as set out in the Will. However, in the absence of a valid Will, Letters of Administration may be required to deal with the estate. Here, we look at when Probate and Letters of Administration are required and what an executor, administrator and beneficiary should be aware of.

When is a Grant of Probate required?

A Grant of Probate is a court order granted to the Executor/s of a deceased’s Will, which authorises the executor(s) to manage the deceased’s estate as set out in the Will.  Obtaining a Grant of Probate is a legal process that involves the executor/s making an application to the Supreme Court of the relevant State jurisdiction. 

In NSW, the application for a Grant of Probate must be made to the Supreme Court within 6 months of the date of the deceased’s death[i]. If an application is not made within that time, the Executor needs to obtain an  affidavit explaining the reasons for the delay and submit it to the Court.  

If Probate has been granted outside of New South Wales, such as in another State in Australia or certain countries, then an application for the reseal of the original (foreign) grant may be required in New South Wales.  You can learn more about this process here.  

Probate matters can often be quite complex, and so we recommend speaking to an experienced Probate Lawyer for advice tailored to your individual circumstances.  

There is no statutory requirement requiring a Grant of Probate and Probate is not required for every estate. Generally, a Grant of Probate will need to be obtained by the Executor/s of the deceased’s estate in circumstances where:

  • the deceased’s assets exceed a certain amount of monies held by a financial institution and cannot be realised without Probate. For example, a bank may require a Grant of Probate before they agree to release the funds;
  • the deceased owned real estate in their name only; or
  • the deceased owned real estate as ‘tenants in common’ with a co-owner/s.

The process for applying for a Grant Probate differs from State to State, so it’s important to be aware of what the process is in your relevant State jurisdiction.

When is a Grant of Letters of Administration required?

Typically, a Grant of Letters of Administration may be required if a person dies ‘intestate’. This means a person has died without a valid Will.

A Letter of Administration is a formal document issued by the Supreme Court of the relevant State jurisdiction assigning the management of the deceased’s estate to the person who has made an application for Letters of Administration.  An applicant may be a close relative or a friend of the deceased who will take on the responsibility to act for the deceased’s estate in order to manage and distribute the estate. In some instances, particularly in NSW, the applicant may be the NSW Trustee to whom the administration is granted by the court.

There are certain intestacy rules and eligibility requirements associated with applying for a Letter of Administration and receiving entitlements under the deceased’s estate, as per Chapter 4 of the Succession Act. Generally, this includes the deceased’s spouse/s (including a de facto partner/s registered under the Relationships Register Act 2010 (NSW)), children and grandchildren, parents, siblings (brothers and sisters), grandparents and aunts and uncles. The Succession Act also sets out the order in which the person/s are eligible under an intestate estate and formulae to calculate such entitlement/s.

Filing a caveat

A person claiming to have an interest in the deceased’s estate may be able to file a caveat on a Grant of Probate or Letters of Administration (including resealing of a foreign grant)[ii], which prevents the court from making a grant in relation to the estate. 

Once filed, a caveat remains effective for a period of 6 months.  The caveat must be reasonable and filed if the validity of the Will is being challenged, which includes where there are concerns of the Will being forged, the Will-maker not having testamentary capacity or the Will being executed under duress.  The executor or administrator may be able to successfully make an application to the court to have the caveat removed if the caveat is found to have no standing[iii]. In such an event, the executor or administrator may commence what’s called “contested proceedings” by way of a statement of claim for the Probate to be granted in solemn form[iv].

If you would like to learn more about filing a caveat on a Grant of Probate or a Letter of Administration, get in touch with one of our Sydney Probate Lawyers today.

What if you need to contest the Will?

There may be some circumstances in which you wish to contest or challenge the Will itself, by way of a Family Provision Claim. This happens when an eligible person (typically a spouse, partner or child of the deceased) challenges the Will because they feel they have been left out of the Will or not adequately provided for in the Will.

In NSW, there is no requirement for Probate or Letters of Administration to have been granted before a Family Provision Claim can be made.

To learn more about the requirements for making a family provision claim, see our article: “5 things to consider before making a family provision claim”.

Seeking help with your probate matter

If you need assistance with obtaining a Grant of Probate or Letter of Administration, our experienced Sydney Probate Lawyers are here to help. Contact us today for a no-obligation consultation on (02) 9262 4003 or submit an online enquiry.

REFERENCES

[i] Part 78, Rule 16 of the Supreme Court Rules 1970 (NSW).
[ii] Part 78, Division 10 of the Supreme Court Rules 1970 (NSW).
[iii] Part 78, Rule 71 of the Supreme Court Rules 1970 (NSW).
[iv] Prt 78, Rule 72 of the Supreme Court Rules 1970 (NSW).
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.