Grant of Probate or Letters of Administration
What is Probate?
Probate is a grant made by a court that ‘proves’ the will of a deceased person and vests title to estate assets in the executor. This is the official process that allows the executor to deal with the deceased’s estate.
The type of grant that is required will depend on whether the deceased person died leaving a properly executed will and whether an executor is appointed in the will. Generally, a grant of probate is the document required if a person dies leaving a valid will.
What is Letters of Administration?
A grant of letters of administration is required if a person dies without leaving a valid will, and is a grant made by a court that allows an administrator to manage and distribute the deceased’s assets.
If the deceased died without a valid will, or the will appointed an executor who is unable or unwilling to fulfil that position, an interested person (usually a spouse, partner or child) may apply for letters of administration.
Probate or Letters of Administration?
Generally:
- Where there is a will and a named executor, the executor applies to the Supreme Court for a grant of "probate" of the will.
- If there is no will, the applicant (administrator) applies to the Supreme Court for a grant of letters of administration.
- If there is a will but it does not name an executor (or if the named executor refuses to apply), the applicant applies to the Supreme Court for a grant of "letters of administration with the will annexed".
Is a Grant of Probate or Letters of Administration Necessary?
A grant is almost always necessary to administer an estate, and will be required to transfer real estate that is not subject to a joint tenancy.
Banks, financial institutions and share registries will generally require production of a certified grant before allowing an executor to deal with those assets.
Process to Apply for a Grant of Probate
The following documents are filed with the court:
- Motion for a grant of probate.
- Affidavit sworn by the executor with statement of assets and liabilities.
- Original will and death certificate.
The affidavit must set out a number of facts, including the date of birth, date and place of death of the testator, and the testator’s usual place of residence. It must identify the will and death certificate and include additional information regarding the testator’s marital status, and the witnesses to the will. The affidavit must also explain any irregularities such as different spellings of names or the death of a beneficiary named in the will.
Sometimes, additional documents will need to be prepared to explain unusual circumstances and Douglas Cheveralls Lawyers can advise in this respect.
Once probate is granted, the executor may commence administration of the estate.
Process to Apply for a Grant of Letters of Administration
The following documents are filed with the court:
- Motion for a grant of letters of administration.
- Affidavit sworn by the administrator with a statement of assets and liabilities.
- Original death certificate.
- Consent of the other beneficiaries who are entitled to be the administrator.
In some circumstances, further documents may be required if a person dies leaving minor children, such as a guarantee or a trust deed made in accordance with section 17A of the Administration Act 1903 (WA).
Douglas Cheveralls Lawyers has experience in dealing with complex applications for grants of letters of administration, including applications involving minor children.
Costs to Apply for a Grant of Probate of Grant of Letters of Administration
Douglas Cheveralls Lawyers may assist with the application for the grant of probate or letters of administration, and with explaining the duties that apply and the practical steps to take in order to administer the deceased estate.
As a general guide, the legal costs of an application for a grant of probate will usually be around $1,100 to $2,200 (including GST) plus the court filing fee, depending on the complexity.
If you would like an estimate that is specific to your circumstances, please contact us and we may provide you an estimate of the costs.