Letters of Administration - Probate Solicitors - Australia Law

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Probate or administration is the process that comes into force when someone dies and the possessions they leave behind need to be dealt with. In some cases an executor is appointed under a will and that person is authorised to deal with the situation by virtue of the will which is confirmed by the probate registry when they issue a document called a ‘Grant Of Probate’. Where there is no will there will be no executor however an administrator will be appointed following authority issued by the probate registry in the form of a ‘Grant of Letters of Administration’.

Depending on the individual situation one of three types of grant will be issued to give someone the authority to handle the estate on behalf of the deceased:-

  • If an executor has been nominated in a will and they are able to take on the duty (possibly supported by a solicitor in the process) their authority will be confirmed by the issue of a the Grant of Probate.

  • A grant of letters of administration can be issued in cases where there is a will but no executor has been appointed – regardless of whether none were asked to carry out the duty in the will or whether they refused to take it on for whatever reason.

  • A Grant of Letters of Administration must also be obtained in cases where the deceased died intestate (without a will) or left one which was deemed to be invalid for some reason; for example, it may not have been signed properly.

In most situations a grant of representation is required and it is certainly safer if the person in charge of dealing with the estate has this legal authority issued by the court, as it proves the law recognises that person as the one who is legally entitled to deal with the assets. If the estate is very small and straightforward then you may not require a grant of representation – a solicitor will be able to advise you on this. Certain situations will definitely require a grant of representation, such as the sale of a property owned by the deceased alone.

To apply for a grant of letters of administration or a grant of probate you will need to value all of the assets and calculate all of the liabilities of the deceased including any tax that is due. The application forms which can be obtained from a Probate Registry are then completed and submitted together with the death certificate and the will. The applicant may have to subsequently attend an interview with an officer from the Probate Registry to clarify any matters following which if all is in order the grant of representation will be issued. The interview is by appointment, is informal and is merely to establish that all is in order. You will be asked to confirm everything and sign and swear an affidavit which is a written oath.

Grant of Letters of Administration - Overview

Following a death, where there is no valid will, the Court enforces the rules of intestacy whereby a Grant of Letters of Administration is issued usually to a relative who will be a beneficiary under those rules. That person becomes the administrator and assumes the same duties as an executor, in that they must gather the assets and pay the liabilities and taxes before distributing the remaining assets in accordance with the intestacy rules. When no relatives are located, the assets of the deceased become the property of the Crown and might be auctioned off to settle taxes and liabilities.

The person appointed by the court as an administer is normally a close friend or a relative who has a financial interest in the deceased’s estate; otherwise, the court may appoint a professional person usually a solicitor to distribute the assets after death. The duties of an administrator mirror those of an executor. The only difference being that an executor derives authority from the will whereas an administrator derives authority from the High Court.

Whoever is appointed as administrator must locate all the assets of the estate, take possession of property when appropriate, determine liabilities and thereafter distribute the assets in accordance with the precedence outlined by the statutory intestacy rules, and carry out an estimate on the value of the estate. In addition, the administrator must pay the estimated inheritance tax from the estate, which may be adjusted later.

It is the duty and responsibility of the administrators to settle debts and liabilities including all taxes, before making distribution of the remaining assets in accordance with the intestacy rules. All decisions made by administrators are subject to examination by the court, if the will or distribution of assets becomes a matter of contention.

The application for Grant of Letters of Administration is submitted along with an affidavit sworn by the proposed administrator together with the details of the death, an original copy of the will, and a receipt of the paid estimated tax.

In simple cases where there is very little property, there may be no need for a Grant of Letters of Administration, with some organisations being willing to release small amounts of money with just a look at the death certificate. When there is a surviving spouse or civil partner, those monies can often pass automatically.

In more than 75 percent of all probate cases when a grant of representation is issued, the appointed representative will instruct a solicitor to deal with the matter and the legal fee for the solicitor is deducted from the estate. Probate is not an easy task and there are many responsibilities. Additionally, instructing a solicitor to handle matters of probate ensures legal procedures are followed and the appointed executor can get on with their own business without worry of ensuring all the details are met. Most probate solicitors are accustomed to handling contested or contentious wills as well, should that become necessary.

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