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Probate and Letters of Administration

In order to complete the administration of a deceased estate, particularly where the assets of the estate are more than a modest value, it is often necessary for a grant of probate or letters of administration to be obtained.

Entities such as banks and share registries often insist on sighting a grant of probate or letters of administration, in order to protect themselves against liability following the release the deceased person’s assets. If an entity unwittingly releases an asset to a fraudster without sighting a grant of probate or letters of administration, the entity might subsequently find itself subject to court proceedings for the recovery of the asset by the real executor or administrator of the estate.

The purpose of this article is to provide you with a general understanding of the nature of grants of probate or letters of administration, and the procedures involved in obtaining them.

Probate

Probate is granted in circumstances where the deceased person has left a will nominating one or more executors.

A grant of probate is essentially a declaration by the Supreme Court that the will is the last valid will of the deceased person, and that the executor named in the will has the authority to collect the estate assets, pay the estate liabilities, and distribute the estate to the beneficiaries entitled to it.

Letters of administration

Letters of administration are generally granted in two main circumstances:

(a) where the deceased person left a will but there is no executor able and willing to administer the estate – in these cases, it is necessary to obtain what is called a grant of letters of administration with the will;

(b) where the deceased person did not leave a will – in these cases, it is necessary to obtain what is called a grant of letters of administration on intestacy.

There is legislation which establishes an order of priority setting out the persons who have the right to obtain a grant of letters of administration in each of these circumstances.

A grant of letters of administration, once made, has the same effect as a grant of probate.

Procedure

If a grant of probate or letters of administration is required, the application is a fairly formal procedure. The procedure is as follows:

(a) A notice of your intention to apply for a grant of probate or letters of administration must be published in the Courier Mail and in the Queensland Law Reporter, and a copy of the notice must be sent to the Public Trustee of Queensland.

(b) You must wait 14 days from the date that the last advertisement is published before filing the application for probate or letters of administration in the Supreme Court Registry, as the rules governing probate and letters of administration require a period for any objections to the application to be lodged.

(c) Once 14 days have elapsed from the date of the last advertisement to be published, the application can be filed in the Supreme Court Registry. Generally, the documents required to be lodged are:

i) the application for probate or letters of administration;

ii) an affidavit in support of the application for probate or letters of administration;

iii) the original will (if any);

iv) the death certificate; and

v) an affidavit evidencing the publication of the notice of your intention to apply for probate or letters of administration.

Some other documents may also need to be lodged, depending on the requirements of the Supreme Court Probate Registrar.

(d) The Supreme Court Probate Registrar will then examine the application. If there are any matters which the Probate Registrar requires to be explained, then a requisition will be issued setting out those matters and the additional information you need to provide.

(e) Once the requirements of the Supreme Court Probate Registrar have been satisfied, the grant of probate or letters of administration is issued and the estate can be administered.

Where there is an objection to an application for a grant of probate or letters of administration, the Supreme Court Probate Registrar will generally refer the matter to a Judge. Different rules and procedures apply in cases where there is a dispute as to whether a grant of probate or letters of administration should be made.

For more information about grants of probate and letters of administration, please contact our office on (07) 3009 8444.

supervising partners

Gavin McInnes

Partner
Office 07 3009 8444
Email g.mcinnes@rclaw.com.au