When a person passes away and leaves behind property, assets, and debts, their estate needs to be administered and distributed to their beneficiaries. Two common legal terms associated with estate administration are probate and letters of administration. In this article, we will explore the differences between probate and letters of administration in Australia.
Probate
Probate is a legal process that confirms the validity of a deceased person's will and authorizes the executor named in the will to administer the estate. The executor is responsible for gathering and valuing the deceased person's assets, paying any debts or taxes owed, and distributing the remaining assets to the beneficiaries named in the will.
In order to obtain probate, the executor must file an application with the Supreme Court of the state or territory where the deceased person resided. The application must include the original will, a death certificate, and an inventory of the deceased person's assets and liabilities. The court will then review the application and, if satisfied, grant probate.
Probate is not always necessary. If the deceased person's assets were held jointly with another person, such as a spouse, or if their assets were held in a trust, probate may not be required. Additionally, if the deceased person's assets were of a low value, the executor may be able to distribute the assets without obtaining probate.
Letters of Administration
Letters of administration, on the other hand, are granted by the court when a person dies without a valid will or when the named executor in the will is unable or unwilling to act. In these cases, the court will appoint an administrator to manage the estate.
The process for obtaining letters of administration is similar to that of probate. The administrator must file an application with the court, which includes a death certificate and an inventory of the deceased person's assets and liabilities. The court will then review the application and, if satisfied, grant letters of administration.
The Differences
One important difference between probate and letters of administration is that, in the latter case, the deceased person's assets will be distributed according to the rules of intestacy. Intestacy laws vary between states and territories, but generally, the deceased person's assets will be distributed to their spouse and children or, if they have no spouse or children, to their parents or siblings.
In conclusion, probate and letters of administration are both legal processes used in Australia to administer the estate of a deceased person. Probate is necessary when a person dies with a valid will, while letters of administration are required when there is no valid will or the named executor is unable to act. Understanding the differences between these two processes is important for anyone who is involved in estate administration.
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This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice, specific to your circumstances.