Losing someone close to you is difficult, and the legal steps that follow can feel overwhelming at a time when you already have a great deal on your mind. If you have been named to manage a loved one’s estate, or you are simply trying to understand what is involved, knowing which documents you need is a helpful first step. We will explain the main forms of legal authority used in New South Wales to finalise a deceased person’s estate, so you can approach the process with greater confidence.

When is legal authority needed?

When a person dies leaving assets in their sole name, such as real estate, bank accounts or shares, someone usually needs legal authority to collect those assets, pay debts and distribute what is left. In New South Wales, that authority is commonly given by the Supreme Court through either a Grant of Probate or a Grant of Letters of Administration.

What is a Grant of Probate?

A Grant of Probate is used when the deceased person left a valid will, and that will names an executor who is able and willing to act. The executor is the person chosen by the deceased to carry out the will. Probate confirms that the will is valid and that the executor has authority to deal with the estate. Once probate is granted, the executor can gather in the assets, pay funeral expenses, taxes and debts, and distribute the estate to the beneficiaries named in the will.

What is a Grant of Letters of Administration?

A Grant of Letters of Administration is used when there is no executor able to obtain probate. This most commonly happens where the deceased did not leave a valid will. In that situation, the person is said to have died intestate. The estate is then distributed according to intestacy laws, which set out which relatives are entitled to inherit and in what shares. The person appointed to manage the estate is called the administrator, rather than the executor.

When there is a will but no executor available

Letters of Administration may also be needed even where there is a will. For example, the will may fail to appoint an executor, the named executor may have died, or the executor may be unwilling or unable to act. Where there is a will but no executor available, or some other problem with the document, the grant is often called Letters of Administration with the Will Annexed. In that case, the administrator must still follow the will.

Probate or Letters of Administration: what is the difference?

The key difference is the source of authority. Probate confirms the authority of an executor appointed by a valid will. Letters of Administration appoint an administrator where there is no valid will, or no executor who can act.

Does every estate need a grant?

Not every estate needs a grant. Some assets may pass automatically, including:

• jointly owned property, which generally passes to the surviving joint owner
• superannuation, where it is paid directly to a nominated beneficiary

Banks and other institutions may also release smaller amounts without a court grant. However, where significant assets are held in the deceased’s sole name, particularly real estate, a grant is often required before those assets can be transferred or sold.

We can help you take the next step

Working out which grant applies to your situation, and preparing the paperwork correctly, can be one of the more confusing parts of administering an estate. If you have lost someone and are unsure what to do next, we can guide you through the process and help you understand your responsibilities.

Contact our experienced team to discuss your situation.