Letters of Administration v Grant of Probate
Once someone has passed away, there are certain steps required to be undertaken in order to deal with all of their assets, debts and finances. In order to carry out these duties a Grant of Representation may be required depending on the assets left by the deceased. A Grant of Representation is a document issued by the Supreme Court of Victoria which enables those named as Executors or Administrators to deal with the assets of the deceased. The Grant provides official proof that the person named in the deceased’s Will is entitled to handle the estate of the deceased.
Here are some types of Grants of Representation that may be issued by the Court:
1. Probate - Probate is granted where the deceased's last Will is proved by one or more Executors named in the Will;
2. Letters of Administration with the Will annexed – is granted where the deceased has left a valid Will but the named Executor
cannot or will not apply for a Grant. The persons most entitled to make this application are the major beneficiary/s with the
greatest interests under the Will; and
3. Letters of Administration – where a person dies without a valid Will the Court issues a Grant of Letters of Administration,
usually to the next of kin of the deceased.
Estate Administration can be a long and drawn-out task, depending on the circumstances and it is essential that the right advice is sought from a skilled legal professional.
What are Letters of Administration?
Where a deceased person’s estate is declared intestate, one may need to apply to the Supreme Court for a Grant of Letters of Administration.
A deceased person’s estate is declared intestate where the deceased has:
4. No Will;
5. An invalid Will;
6. A lost Will;
7. A Will that has failed to distribute all their assets; or
8. A document that has “wishes” but cannot be legally recognised as a will.
Usually, the spouse or de-facto partner, will have to apply to the court for Letters of Administration. However, if the deceased has left no partner, then the person with the greatest interest in the estate under the rules of intestacy will need to apply. The person with the greatest interest is the person who stands to gain the most from the estate.
The distribution of an intestate estate where the deceased has left a partner is as follows:
9. If the deceased has left a partner and no children, then the partner is entitled to the entire residuary estate.
10. If the deceased has left a partner and one or more children (of the partner), the partner is entitled to the entire residuary
estate.
11. If the deceased has left a partner and one or more children who are not the children of the living partner, then the partner
may be entitled to the entire residuary of the estate, unless the estate is worth more than the partner’s statutory legacy,
which is currently $451,909, in which case the partner is entitled to:
11.1 personal chattels of the estate; and
11.2 the amount of the partners statutory legacy between the date of death and the date of payment of the statutory
legacy; and
11.3 half of the balance of the residuary estate.
12. Following this, the children of the deceased are entitled to the other half of the residuary estate in equal shares. If the
child/ren of the deceased have predeceased and left surviving children, then those children take the shares of the deceased
parent and if more than on in equal shares.
The distribution of an intestate estate where the deceased has not left a partner:
13. If the deceased leaves children, then they are entitled to the residuary estate, and if more than one in equal shares; or
14. If the deceased leaves no children, but is survived by their parents, then they are entitled to the residuary estate, and if more
than one in equal shares; or
15. If the deceased leaves no children and no parents, but is survived by their siblings, then they are entitled to the residuary
estate, and if more than one in equal shares. If any siblings have predeceased and left a child or children, then those children
receive the share that the sibling would have received; or
16. If the deceased leaves no children, parents, or siblings, but is survived by their grandparents, then they are entitled to the
residuary estate, and if more than one in equal shares; or
17. If the deceased leaves no children, parents, siblings or grandparents, but is survived by aunts or uncles, then they are entitled
to the residuary estate, and if more than one in equal shares. If any of their aunts or uncles have predeceased, then the
children (the cousins of the deceased) of those aunts or uncles are entitled to the share of their parents and if more than one
equally; or
If no person is entitled to the estate of an intestate, the residuary estate is taken to be property that has no owner and is therefore passed on to the Crown. If you need further information about an intestate estate or wish to understand your interest in a deceased estate, please contact our office to arrange a meeting with one of our lawyers.
What is Probate?
Probate is a legal process that is often required to authenticate a deceased’s persons Will so that their assets and personal belongings can be dealt with in accordance with their wishes.
Whether or not Probate is required to be applied for often depends on what assets have been left behind by the deceased and also the requirements of the asset holders. Generally, the requirement for a Grant of Probate depends on the following:
18. The financial value of the deceased’s sole assets. In certain circumstances, if this amount is minimal a Grant may not be
required;
19. Whether the deceased owned real estate either solely or as a tenant in common;
20. Whether the deceased’s assets were held jointly or separately; or
21. Whether there is any Superannuation without a binding death nomination.
If Probate is required, the Executor/s named in the Will, will be required to apply for Probate. There are a series of steps that the Executor/s will need to go through.
When an Executor applies for Probate, they will be required to present the Court with the deceased’s Death Certificate, deceased’s Will and a list of all of the deceased’s assets and liabilities. This step in applying for Probate can be stressful and has to be done in accordance with the law, which is why Executors usually seek the help from a Legal Representative.
Probate is quite a technical area of law and often, if one thing is wrong, you have to start again. The steps involved in obtaining a Grant of Probate includes advertising in the Supreme Court, drafting the Probate application documents which includes an Affidavit of Executor/s and an Inventory of Assets and Liabilities. There are times when an application for a Grant of Probate is requisitioned by the Supreme Court as they require more information. This is to ensure that the person the Grant is given to, is the person the deceased really nominated and to ensure that the correct person administers the estate. Further Affidavits are generally required to be submitted by the Executor/s to satisfy the Supreme Court’s requisition.
If you require our assistance with obtaining a Grant of Representation or would like to know more information on how we can assist you, please contact our office on 03 9707 1155 or via email at admin@wslegal.com.au.