Some of the legal jargon in succession law may seem daunting but we’re here as a resource to demystify some of these legal terms.
Starting with the difference between Probate and Letters of Administration. The simple answer is they are two different Originating Applications filed to commence proceedings to appoint a Person Representative who is responsible for administering a deceased estate.
What is the difference between a grant of probate and letters of administration?
In short, a Grant of Probate is an authorisation issued by the Supreme Court, designating the executor as the individual responsible for managing the deceased’s estate. In contrast, a Letter of Administration is granted to a person not specified as the executor in the will, enabling them to administer the estate.
Typically, you should get letters of administration if there is no will (intestacy), and probate if there is a will (and the executors are alive).
To complicate matters, you can also get letters of administration with the will. This only happens if there is a will but it fails to name an executor, or the executor is not alive to apply for probate.
Grants of Letters of Administration and Probate both serve as proof of the Personal Representative’s authority to deal with estate assets. Both grants are made by the Supreme Court of the relevant State in Australia.
Do I need to apply for Probate or Letters of Administration?
Generally, you can use this test to decide which Grant to apply for:-
- If there is a valid Will, the correct Court application to file is for a Grant of Probate.
- If the Will is not valid, or if there is no valid will, the correct Court application to file is for a Grant of Letters of Administration.
These are general rules and do not constitute legal advice as they do not take into account the circumstances of the estate.
Qld Supreme Court filing fees are $766.80 for Probate or Letters of Administration (may be reduced to $139.90 if you have a current government concession card).
You should take care to file the correct application, if you need to apply at all. In particular cases it is not necessary to apply for probate at all.
A Brisbane Wills & Estates Lawyer can help you assess which application to file, if you need to apply at all, and advise you about whether you may be eligible for any reductions. Call us today on 07 3073 2405 or get in touch via the form below and we’ll call you for a free consultation and case assessment.
Probate
The application filed by the Executor(s) of the Will left by a deceased person. The Grant of Probate is proof the the deceased’s last will is valid and provides certain protection to the Executor distributing estate property.
Once granted, the administration includes gathering assets, paying funeral costs and other debts and then, distributing the remaining assets to the beneficiaries named in the Will. Executors are also responsible for handling any will challenges or contests, such as family provision claims or disputes about whether the Will is valid.
Letters of Administration
An application for Letters of Administration on Intestacy is filed if the deceased died without a Will. As there are no Executors to make the application, usually a family member or someone with an interest in the estate will apply for the grant.
The process for determining who has priority to receive the grant is prescribed by the Succession Act 1981 (Qld).
Read about who is eligible to apply in our guide to Letters of Administration in Queensland.
Once granted, the administration process is very similar to the probate process.
What is the difference between an Administrator and an Executor?
An Executor is the Personal Representative of an estate in which there is a valid Will.
The major difference is that an Executor has power from the moment of death because they have been named in the Will. Whereas there is no Administrator until one is appointed by the Supreme Court upon issuing Letters of Administration (LoA).
One practical difference is that by making a Will, your Executor has authority to pay specific urgent expenses – like a funeral – from estate funds. If there is no Will, those funds are frozen until LoA are granted. This can place tremendous stress on family members as they may have to pay funeral expenses from their own pocket until estate funds are released. This is another reason why you should make a will.
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