What is probate?

Probate is the process of proving the validity of a will and registering it with the Supreme Court. This process is undertaken by the executor named in the will of a deceased person and is done by way of an application to the Probate Registry of the Supreme Court.

Once the Supreme Court is satisfied that the person has died and that the will is valid and authentic, a grant of probate will be issued. An executor is not authorised to administer (or deal with) certain assets of an estate without a grant of probate.

When do I need probate?

Most assets owned by the deceased will not be able to be dealt with in the absence of a grant of probate. This ensures protection of the deceased’s assets, as the grant of probate is proof that the executor is entitled to administer the assets.

Examples include:-

• the Lands Titles Office will require a grant of probate in order to sell or transfer real estate;
• share registries will require a grant of probate to sell or transfer shares;
• monies in bank accounts over a certain amount (generally over $10,000.00);
• trustees of superannuation funds may require a grant of probate to discharge the super fund.

What are letters of administration?

If a person dies without a will (that is, they die intestate), the deceased’s next of kin will need to apply for a grant of letters of administration through the Probate Registry of the Supreme Court.

This is a similar process to obtaining a grant of probate. Until a grant of letters of administration is issued, the deceased’s assets vest in the Public Trustee and the person applying for a grant of letters of administration is accountable to the Public Trustee for the treatment of all assets. This may add costs and delay to the administration.  This is one of the many reasons why it is important to have a will.

As with estates where there is a will, most assets owned by the deceased will not be able to be dealt with in the absence of a grant of letters of administration. 

Who is entitled to act as an administrator?

As there is no will which appoints an executor to administer the estate, the law sets out the order of priority of family members who are entitled to act as the administrator of an estate of a person who has died without a will.

The order of priority is as follows:-

• Spouse or domestic partner of the deceased;
• Children of the deceased, or the issue of any such child who died before the deceased;
• Father and mother of the deceased;
• Brothers and sisters of the deceased.

How can I obtain a grant?

Obtaining a grant of probate or letters of administration can often be overwhelming for loved ones who are grieving, particularly as there are strict rules and procedures to be followed in the application process.

It is therefore beneficial for executors/administrators to seek the assistance of an experienced lawyer who can prepare and lodge the application on their behalf. This will ensure that the process runs smoothly and with minimal stress for the executors/administrators and family members.

At DBH, our Wills and Estates Lawyers can assist with obtaining a grant of probate or letters of administration. We can also provide expert assistance with the administration of deceased estates.