When someone dies, their assets and debts must be distributed to beneficiaries. Two legal terms related to this estate administration are Probate and Letters of Administration. So, what is a Grant of Probate vs Letters of Administration?
Both Supreme Court orders grant the authority to distribute a deceased Estate. However, the key difference between the two is when they apply. If someone passes away with a valid Will and nominated Executor, they will typically require a Grant of Probate to administer the Estate. Conversely, if the deceased has left no valid Will or nominated Executor, then you must apply for Letters of Administration before distributing any of their assets.
Therefore, while both a Grant of Probate and Letters of Administration serve to grant the Executor or Administrator access to the deceased Estate, they are inherently different. Below, we define each legal document and compare their distinct purposes so that you can better understand which one your circumstances require.
What is a Grant of Probate?
A Grant of Probate is a licence issued by the Supreme Court that grants a nominated Executor of a Will the authority to access and administer the deceased Estate.
It is typically required when the deceased owned assets in their name alone. However, if the only significant asset is a jointly owned property, such as a house shared with a spouse, there’s no need for this Grant, as ownership will automatically pass to the surviving partner.
The Grant of Probate proves that:
1. The Testator is deceased;
2. The deceased had a valid Will in place that nominated an Executor(s); and
3. The Executor is willing and able to distribute the Estate.
Learn more with our ‘What is Probate?’ guide.
This process presents other parties with the opportunity to object to Probate being granted, such as if there is a more recent Will with a different nominated Executor, or if it is believed that the deceased did not have the capacity to declare their final intentions accurately.
Furthermore, the Land Titles Office and many financial institutions will in many circumstances demand provision of a Grant of Probate before they give the Executor access to bank accounts and other assets. This measure protects the asset holder from subsequent claims should the Will be contested in the future.
Executors can reach out to the relevant institutions managing the deceased’s assets to determine whether a Grant of Probate is required. Alternatively, a solicitor can provide guidance, evaluating whether probate is necessary based on the nature and worth of the estate’s holdings.
Keep reading to learn more about Probate vs Letters of Administration.
What are Letters of Administration?
Similarly to Probate, Letters of Administration are a Supreme Court order issued to an applicant who wishes to benefit from a deceased
- Estate in the following situations:
- The deceased has not left a valid Will or it cannot be located;
- The Will fails to nominate an Executor; or
- The nominated Executor has since passed or does not have the mental capacity to perform such duties.
By obtaining a Grant of Letters of Administration, the Court-appointed Administrator is authorised to deal with the Estate in the same way as an Executor of a Will.
Any party looking to receive a portion of the Estate must provide evidence of their interest and entitlement to the Administrator. Estate distribution will then be determined under Section 14 of the Administration Act 1903.
Grant of Probate vs Letters of Administration: 4 key differences
Deceased’s degree of Estate planning
Whereas Probate is granted to a Will’s nominated Executor, Letters of Administration are issued to successful applicants in cases where the deceased did not leave a valid Will or appoint an Executor. Both Court orders give permission to access and administer the deceased Estate.
Eligibility
The next difference between Probate vs Letters of Administration is who may apply.
A Testator can appoint anyone as the Executor(s) of their Will. Importantly, only this Executor is eligible to apply for Probate.
In contrast, anyone who is entitled to a portion of the deceased Estate are allowed to apply for Letters of Administration and become an Administrator. In other words, this order can be given to someone who hasn’t been appointed as Executor in a Will.
The person assumed to inherit the greatest share of the Estate usually applies for Letters of Administration. This is often the spouse or child of the deceased, but can also be a Trustee if no next of kin come forward. Importantly, a creditor may in certain circumstances also apply for
Letters Of Administration, as they have a vested interest in the Estate.
All differences considered, it’s important to highlight that an Executor and Administrator will have the same powers, duties and obligations.
Application
Another key difference between a Grant of Probate and Letters of Administration is the application process.
When you have a valid Will to consult, it is more straightforward to determine who the Testator nominated as the Executor. When applying for Probate, the Executor must swear an Affidavit affirming that, to the best of their knowledge, the Will they are submitting is the deceased’s most recent and final expression of their wishes, with no later Will in existence.
However, with Letters of Administration, the applicant is required to provide evidence of their entitlement. They must also swear an Affidavit that as far as they know, the deceased did not leave behind a Will or any other document expressing their final wishes.
Therefore, applying for Letters of Administration is generally more complex, costly and time intensive than applying for a Grant of Probate.
Duration
The final consideration when considering Probate vs Letters of Administration is the length of time each takes.
In general, the process of obtaining Probate can take approximately two months. Meanwhile, receiving Letters of Administration can take about 15 to 30 working days from the time of application in simple cases. However, this is often just the start of the journey. Once an application is lodged, the Court may issue a requisition—essentially a request for more details or documentation. If this occurs, it can extend the timeline for obtaining Letters of Administration.
Of course, these estimates vary greatly according to the specific circumstances at hand, sometimes spanning years if the situation is particularly complex or not managed properly.
Learn more with our ‘How Long Does Probate Take?’ guide.
Get tailored advice on Probate or Letters of Administration in WA
When comparing a Grant of Probate vs Letters of Administration, the primary difference lies in whether the deceased has clarified their final intentions, or more specifically, appointed an Executor in a valid Will.
If you believe that you need to obtain either of these orders, then it is important to seek legal advice from an experienced Estate Planning lawyer. This is because the Supreme Court has stringent application requirements for Probate, and even more so for Letters of
Administration. This professional and personalised support can help to streamline and accelerate the process – an important consideration when time is of the essence.
At Affinitas Legal, our lawyers can assist you in applying for a Grant of Probate or Letters of Administration in Western Australia. Please get in touch with our Estate Planning team today.
Disclaimer
General Advice Warning
The information contained in this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a suitably qualified lawyer.
All legal and other matters referred to in this article are of a general nature only and are based on Affinitas Legal’s interpretation of laws existing at the time and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time and the information contained herein may be out of date.
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