When it comes to handling the affairs of a deceased person in Australia, two terms often come up: Probate and Letters of Administration.
These legal processes are crucial in administering an estate and distributing assets to beneficiaries. Understanding the differences between Probate and Letters of Administration is essential for those involved in estate matters.
So, in this article, let’s delve into the key distinctions between Probate and Letters of Administration in Australia.
Probate in Australia
The first and most common process after someone dies is the Probate. It is a legal process that validates and carries out the wishes outlined in a deceased person’s Will. Basically, it is a court order confirming the Will’s validity and granting authority to the executor(s) named in the Will to administer the estate.
The executor’s role in Probate is to gather the deceased person’s assets, pay off any debts and taxes owed, and distribute the remaining assets according to the terms of the Will.
To initiate the probate process, the executor must submit an application to the Supreme Court of the relevant state or territory where the deceased person resided. For example, if you reside in Victoria, you must apply after paying the required Probate filing fees in Victoria.
The court will review the application, examine the Will, and ensure its authenticity. If everything is in order, the court will issue a Grant of Probate, which serves as legal proof of the executor’s authority to act on behalf of the estate.
Letters of Administration in Australia
In cases where a person dies without leaving a valid Will or if the Will does not name an executor, the process of administering the estate is different. Instead of Probate, the court grants Letters of Administration to a person, usually a close family member or beneficiary.
This person becomes the estate administrator.
The role of an administrator is similar to that of an executor in a Probate case. The Letters of Administration give the administrator the legal authority to manage and distribute the deceased person’s estate according to the intestacy laws of the relevant state or territory.
Intestacy laws determine how the assets should be divided among the surviving relatives, typically following a set hierarchy. The administrator must follow these laws and distribute the assets accordingly.
Differences between Probate and Letters of Administration
Now that we understand the basic definitions of Probate and Letters of Administration, let us explore the key differences between the two processes.
- Initiation: Probate starts when a deceased person has left a valid Will, and the named executor(s) apply for a Grant of Probate after paying the Probate filing fees in Victoria. On the other hand, Letters of Administration come into play when there is no valid Will or if the Will does not name an executor.
- Executor/Administrator Appointment: In probate, the court appoints the executor(s) named in the Will to administer the estate. In Letters of Administration, the court appoints an administrator, usually a close family member, to handle the estate administration.
- Intestacy Laws: Probate follows the instructions outlined in the deceased person’s Will. The executor(s) distribute the assets per the wishes specified in the Will. In contrast, Letters of Administration rely on intestacy laws to determine the fair division of assets when there is no valid Will. The administrator must follow the legal guidelines to ensure fair distribution among the surviving relatives.
- Court Supervision: In probate cases, the court’s involvement is limited unless a dispute arises or the executor fails to fulfil their duties. Letters of Administration, on the other hand, typically involve more court supervision to ensure the administrator complies with intestacy laws and acts in the estate’s and beneficiaries’ best interests.
- Documentation: To obtain probate, the executor(s) must submit various documents, including the original Will, death certificate, and application forms, to the court. In the case of Letters of Administration, the administrator must provide similar documents along with evidence that no valid Will exists.
- Level of Control: In probate, the executor(s) named in the Will can make decisions and carry out the deceased person’s wishes as outlined in the Will. They have the freedom to administer the estate according to the specified instructions. In contrast, with Letters of Administration, the administrator must adhere to the intestacy laws and distribute the assets based on the predetermined legal guidelines, leaving less room for personal discretion in the distribution process.
- Notice Requirements: Probate generally requires the executor(s) to publish a notice in a local newspaper to inform potential creditors and beneficiaries about the deceased person’s passing and the Probate process. Letters of Administration may have similar notice requirements, but they are often more extensive to ensure all eligible heirs know the estate administration.
Conclusion
Probate and Letters of Administration are two distinct legal processes in Australia that govern the administration of a deceased person’s estate. Understanding these key differences is crucial for anyone involved in estate matters, as it determines the procedures to follow and the distribution of assets.
Seeking legal advice from a qualified professional, such as Probate Consultants, can provide further guidance and ensure compliance with the laws and regulations specific to your jurisdiction.
Having a reliable professional beside you is always helpful during legal matters, as you will have a million questions in your mind, from Probate fees in SA to how to contest a Will.
Hope this article made your next step clearer to you.
More questions? Feel free to put it in the comments.
