What’s the difference between Probate and Letters of Administration?

Probate and Letters of Administration are legal terms used in Wills and Estates Law to describe two situations that can occur with a deceased estate.

Probate

The executor named in the Will of the deceased applies to the Supreme Court of NSW (the Court) for Probate.

Once the Court has made a Grant of Probate, the executor can administer the estate. Administration of the estate includes gathering in the assets and paying the debts of the estate then distributing the remaining assets to the beneficiaries named in the Will. The executor also deals with any challenges to the Will, such as family provision claims or claims that the deceased’s Will is not valid.

Letters of Administration

Letters of Administration is an application made to the Court where:

• the Will cannot be located; or
• there is a Will but no executor named in the Will; or
• the named executor has died or is unable to act.

When the Court grants Letters of Administration, the administrator it appoints deals with the estate in the same way as an executor (i.e. paying estate debts and administering the estate in accordance with either:

• the Will, or
• if there is no Will – the Laws of Intestacy.

Summary

The difference is therefore:-

• Probate – the deceased left a valid Will with an executor who is able to act; or
• Letters of Administration – the deceased left a valid Will with no executor, or an executor unable to act, or did not leave a Will.

The Court requires more information to determine an application for a grant of a Letter of Administration so it can take longer and be more expensive than an application for a grant of Probate.

Naming multiple Executors and/or a substitute Executor avoids the additional time and expense of applying for a grant of Letters of Administration.

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