Is Probate and Letters of Administration the same thing?

Did you know that in New South Wales (NSW), Probate and Letters of Administration are not the same thing, although they are related legal concepts.

1. Probate: Probate is the legal process where a deceased person's Will is proved valid by the Supreme Court of NSW. It confirms the appointment of the executor(s) named in the will and gives them authority to administer the deceased person's estate according to the terms of the Will.
2. Letters of Administration: Letters of Administration are granted by the Supreme Court of NSW when a person dies without a valid Will (intestate) or when the named executor(s) in the Will are unable or unwilling to act. The court appoints an administrator to manage the estate according to the rules of intestacy or as otherwise determined by the court.

Key differences:

• Will Requirement: Probate requires a valid Will, while Letters of Administration are necessary when there is no valid Will or when the executor cannot act.
• Executor/Administrator: Probate appoints an executor named in the Will; Letters of Administration appoint an administrator designated by the court.
• Process: While both involve court proceedings, the specific procedures and requirements differ depending on whether there is a Will or not.

Probate and Letters of Administration serve similar purposes in administering a deceased person's estate but are distinct legal processes used in different circumstances (with a Will or without a Will).

Do note, it is always simpler to administer an estate when a Will has been prepared by the deceased person as their wishes are set out in that document. Administering an estate without a Will increases the work an administrator has to undertake and makes it a more complex and therefore expensive process.

Do you need advice? At Kells, we have a team of caring and experienced Probate lawyers who are able to assist you during this difficult time and help manage the process for you.

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