Probate is the grant made by way of certificate from the Supreme Court of NSW in this particular state, certifying that the Will of a deceased has been proven according to the legislation and the rules of court and that the court has granted the right to the executor named in the Will to properly administer the Will and to carry out its terms.
Letters of Administration
Letters of Administration may be granted where there is no Will and the court needs to determine who is to be the legal personal representative. In this case that legal personal representative is known as an “administrator” rather than an “executor”.
The administrator may be a close surviving relative or a trustee organisation. In some instances that administrator may be required or obliged to lodge a bond with the court to properly and effectively carry out the administrator’s duties.
Whereas a Will describes and appoints the executor, in some instances the executor may have pre-deceased the testator or declines to accept the executorship after the death of the deceased. Letters of Administration may also be granted here to an administrator. On some occasions a Will may fail to actually appoint an executor. In these instances the court grants Letters of Administration annexing this particular Will and is known as a grant cum testament annexo.
Letters of administration may also be granted to a person or organisation subject to the control of the court, known as a grant pendente lite. This is a limited grant and does not authorise the personal representative to deal with the assets of the estate, merely to provide a person authorised to be either a plaintiff or a defendant in legal proceedings regarding the estate.
An administrator may also be appointed in cases of a person being an executor or non-resident for a significant period of time, where the executor is a person under the age of 18 years and that person’s guardian has to be appointed during the period of that person’s minority.
Again a Will recommends itself as it provides a clear description of the executor entitled to administer the estate, the beneficiaries and particular gifts going to those beneficiaries.
By contrast, the order in which beneficiaries might be entitled under the Will under the Succession Act as described under the heading “What is a Will”. The administrator will have the possible onerous task of proving the relationship of various persons to the deceased and how they might or might not be entitled. The administrator has to do this by way of an affidavit but also by further evidence that there is not a surviving defacto spouse and by use of a family tree with certificates from the Registry of Births Deaths and Marriages or official registry setting out the historical relationship of the deceased with various other people.
This is all very well of course where the deceased was born and died in NSW but becomes exceedingly complicated and delaying where the deceased may have been born overseas or another state.
The actual process of application by the administrator is necessarily more complex and more expensive and may expose the person appointed as administrator to a greater risk if they are not aware of certain matters about the estate.
This simply goes to reinforce that a Will is a vital document.
The law surrounding Wills, Powers of Attorney, Guardianship and the distribution of assets following a person’s death is complex and ever changing. We are able to assist you in relation to all these matters and provide peace of mind and elimination of difficulties for all concerned.