When a person passes away, their estate must be administered and distributed to those entitled to receive it. Before this can occur, legal authority is usually required to manage the estate. Depending on whether the deceased left a valid Will, this authority is obtained through either Probate or Letters of Administration. Understanding the difference between the two is essential to finalise a loved one’s affairs.
What is Probate
Probate is the legal process that confirms a Will is valid and authorises the executor(s) named in the Will to administer the deceased’s estate.
When the court grants probate, it issues a Grant of Probate, which gives the executor the legal authority to collect the estates assets, pay any liabilities and taxes, and distribute the remaining assets in accordance with the terms of the Will.
What is Letters of Administration
If someone dies without a valid Will (intestate), the court appoints an administrator to manage the estate through a Grant of Letters of Administration. Letters of Administration may also be needed where a Will exists but the named executor is unable or unwilling to act. This grant provides the same legal powers as probate but differs in who applies and how the estate is distributed.
Under the Succession Act 2006 (NSW), inheritance priority begins with the deceased’s spouse or de facto partner, followed by children, parents, siblings, and other next of kin.
Generally, the grant is made to a person entitled to the estate, usually the next of kin. If the entitled person lives overseas, their attorney under a Power of Attorney may apply, or, if no eligible relative applies, the NSW Trustee & Guardian can administer the estate on their behalf.
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