What are wills, probate and letters of administration?

All of these words have a special meaning in law. Some you will know and some you might not. Probate and letters of administration are documents issued by the Court which are the official evidence of the executor’s or administrator's authority to deal with the deceased person's property. Banks and other financial institutions, Landgate, and share registries may refuse to allow any dealings in relation to a deceased person's property until the Court has made a grant. Below are the meanings for these words and some others which might be useful when someone dies.

Will :-
A will is a legal document setting out who gets part or all of a person's property when they die. Your property is called your "estate". A badly written will can lead to delays and disputes. It is best to use a lawyer if you can, rather than writing your own will.

Executor :-
An executor is the person named in a will to carry out the wishes of a person after they die. They organise to collect the assets of the deceased, pay the debts and distribute the property as set out in the deceased's will. If the will sets out the deceased's wishes on funeral arrangements or organ donation, the executor needs to make the necessary arrangements.

Intestate :-
When a person dies without leaving a will, they are said to have died "intestate". Intestacy also occurs when a deceased person has left a will that only deals with part of their estate.

Probate :-
Probate is the process of proving and registering the last Will of a deceased person in the Supreme Court. When a person dies, somebody has to deal with their estate. It is usually the executor of their Will who administers the estate and handles the disposal of their assets and debts. In order to get authority to do this, they usually need to obtain a legal document called a 'Grant of Probate'.

Letters of Administration :-
If a person dies without a will, the spouse, de facto partner or next of kin should apply to the Probate Office of the Supreme Court for letters of administration. This does not apply to small estates below $10 000 where the process might be simpler (see further information below). If the application is successful, the court grants ‘letters of administration’ to someone who then has the authority to deal with the estate. This person will have the task of finalising the Wills, probate and letters of administration.

Information Sheet :-
This information contains a summary of the law and is correct at the date of publication. It is not legal advice. You should always seek legal advice about your individual situation.
Last updated June 2016
deceased's affairs. The application is quite complicated and may require a lawyer.When someone dies The first thing you must work out in relation to their legal affairs is whether the person who died had a will. If a person dies without a will, the law sets out how their property will be shared out after all the debts have been paid. Without a will, it can be hard to work out who should apply for permission to deal with the deceased's estate.

If the person had a will :-
If the person who dies had a will then you should read the will to see who is named as the ‘executor’. It is the job of the executor to make sure that the estate of the deceased person is handled properly. It can be a difficult and complicated task and sometimes you might need legal advice.

If the will includes instructions about funeral arrangements or organ donation, the executor needs to make the necessary arrangements. The executor should try to keep in mind the wishes, if any, of the deceased person, what the estate is and how much it is worth. If the estate does not have enough assets to cover the funeral costs, the surviving members of the deceased’s family who authorised the funeral arrangements will be responsible for the costs.

The executor must:-

  1. Notify all beneficiaries named in the will
  2. Manage the property or goods left in the will to:
    1. Take care of any business interests
    2. Safeguard any income
    3. Invest money not needed immediately
    4. Collect any valuables
    5. Insure all property
  3. Domestic Violence
    1. Cash
    2. Business Interests
    3. Personal Effects
    4. Securities
    5. Real Estate
    6. Sale of Property
    7. Debts Due
    8. Debts Owing
  4. Complete income tax returns and get a clearance from the Australian Tax Office
  5. Obtain authority to administer the estate:
    1. Apply for a grant of probate or letters of administration if necessary
  6. Pay all debts owing, including selling assets, if necessary, to pay any liabilities
  7. Establish Trusts
  8. Divide the estate
    1. Prepare statements for each of the beneficiaries
    2. Distribute cash and or assets to beneficiaries according to the provisions in the will

If the deceased had bank accounts, shares, real estate or other such assets in their name or was a "tenant in common" in real estate with another party, you may need to apply for a grant of probate in order to finalise the estate.

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