Grant of Probate or Letter of Administration? (ACT)

When someone passes away in the Australian Capital Territory, a probate grant is required to administer the deceased estate. These grants are issued in accordance with the Administration and Probate Act 1929 to legally authorise an executor or administrator to act as a personal representative. The Supreme Court of the ACT issues different types of grants depending on the circumstances of the deceased and the arrangements they have put in place for their estate. This article highlights the difference between a Grant of Probate and a Letter of Administration in the ACT.

Grant of Probate

If the deceased has left a current and valid will that appoints an executor, the executor can apply for a Grant of Probate to assume responsibility for the deceased estate. A Grant of Probate affirms that the will is current and validly drawn and directs the executor to follow the wishes of the deceased as they are outlined in the will.

Letter of Administration

If the deceased has died intestate or the named executor is not able to apply for a Grant of Probate, then a representative of the estate will need to seek a Letter of Administration. In the ACT, a Letter of Administration – No Will is required when the deceased dies without a will, and a Letter of Administration With Will is needed when the testator has left a will but an executor is not making the application. This can occur when the testator has not appointed an executor in their will, or the named executor is unwilling or unable to apply for a grant of probate.

Both forms of Letter of Administration acknowledge the lack of an executor, so someone needs to volunteer to act as an administrator. The Letter of Administration With Will authorises the administrator to carry out the wishes expressed in the will, while the Letter of Administration – No Will orders the administrator to manage the estate according to the rules of intestacy law.

When Is A Grant of Probate And A Letter Of Administration Not Required?

Financial institutions, companies and government departments typically require a personal representative to present a grant of probate document before they will release assets or payout policies. This indemnifies the asset holder from liability in case of later legal action or discovery that the will is invalid. It should be noted that a financial institution will typically accept some level of risk and not require a Grant of Probate or Letter of Administration to release lower value assets (for example, bank balances of less than $10,000). In these circumstances, the institution will usually ask the personal representative to assume responsibility for any prospective liability.

It is also not necessary to apply for a Grant of Probate or Letter of Administration for a property that the deceased owned jointly with someone else. In fact, possession of a jointly owned property is automatically transferred to the surviving party, and jointly held bank accounts become the sole property of the surviving signatory. An executor or administrator should contact the institutions directly to find out whether they require a Grant of Probate to release the asset, or ask a solicitor to assist with the process.

Who Can Apply For A Grant Of Probate or Letter Of Administration?

There is a difference between who is eligible to apply for the two different types of probate grants. Only an executor appointed in a will can apply for a Grant of Probate. As a testator usually nominates more than one executor in their will, all named executors must be signatories of the application, or the application must state the reason for the omission of an executor and provide documentary evidence to support this reason.

The eligibility criteria for a Letter of Administration application are quite different. The prospective administrator must be a competent adult that can be trusted to assume the responsibility. The list of suitable administrators includes the spouse or partner of the deceased, the next of kin, or in last resort, any other appropriate person including a creditor of an intestate estate.

Applications

There is little difference between the application process for the Grant of Probate and the Letter of Administration, as both require certain similar application forms. Both have:

• An Originating Application
• Duplicate copies of the Grant of Probate or Letter or Administration
• An Affidavit of Applicant and an Affidavit of Search.
• A Notice of Intention to Apply that must also be published in a daily ACT newspaper at least 14 days before and not more than three months before the application is filed.

The Grant of Probate and the Letter of Administration With Will applications differ from the Letter of Administration – No Will application in that the will must be attached.

The expert wills and estates team at Armstrong Legal can provide you with further insight into the difference between a Grant of Probate and a Letter of Administration. Please contact our offices on 1300 038 223 or make an appointment via email.