Probate & Letters of Administration

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Probate

Letters of Administration

Reseals of Grants

What Is Probate?

What is Probate?
A grant of probate is a court order that confirms the deceased’s last will is valid and permits the executors appointed under the will to gather the deceased’s assets and distribute them in accordance with the terms of the will.

Who Can Apply?
It is the executor(s) appointed from the will who submit an application to acquire the grant of probate with the relevant Supreme Court.

Is Probate Required?
In NSW, QLD and VIC, probate is not always required simply because there is a will. Whether it is required usually depends on:

Ownership structure of assets (most jointly owned assets such as real estate owned as “joint tenancy” will not require a grant);
Whether any real estate is owned in the deceased’s sole name or if they own any share in real estate as “tenants in common” (these assets will require a grant);
The value of other assets (Institutions like banks usually stipulate asset value thresholds which determine whether a grant is required); and
The requirements of the institutions which hold the assets.

What Are Letters Of Administration?

What Are Letters of Administration?
A grant of letters of administration is a court order which confirms the deceased died without a will (intestate) and permits the administrator (the person appointed by the court) to distribute the deceased’s assets.

In this situation, the law dictates who is entitled to receive the assets of the deceased. This is known as the “rules of intestacy” and these differ amongst Australian states.

Who Can Apply?
The person(s) with the highest legal entitlement to the deceased’s estate applies. Who this person(s) is gets determined from the relevant rules of intestacy. In most cases, this person will be the deceased’s spouse or de-facto partner, followed by any children (adopted or otherwise).

Are Letters of Administration Required?
In NSW, QLD and VIC, a grant of letters of administration are not always required when the deceased dies without a will. As set out earlier, whether it is required usually depends on:

Ownership structure of assets (most jointly owned assets such as real estate owned as “joint tenancy” will not require a grant);
Whether any real estate is owned in the deceased’s sole name or if they own any share in real estate as “tenants in common” (these assets will require a grant);
The value of other assets (Institutions like banks usually stipulate asset value thresholds which determine whether a grant is required); and
The requirements of the institutions which hold the assets.

What Is A Reseal?

What is a Reseal?
Most of the time, a grant of probate or letters of administration will only have legal effect in the jurisdiction they were granted in. To make it enforceable in another Australian State, it will need to be “resealed”. “Resealing” is the process of having the grant of probate/letters of administration legally recognized in another Australian State.

The procedure of applying for a reseal is similar to applying for a Grant of Probate or Letters of Administration. The Supreme Court you are applying to will require:

The original grant or a court-certified copy of the original grant; and
An Affidavit in support of the application for a reseal.

Some Australian States also need a copy of the inventory of assets and liabilities submitted with the original application.

Who Can Apply?
The person(s) to whom the original grant was granted to can apply.

Is a Reseal Required?
As touched upon above, most of the time, a grant will only have legal effect in the jurisdiction they were granted in. If the deceased owned significant assets like real estate in another Australian State, then a “reseal” will usually be required to administer the assets in that State.