A Grant of Probate is the formal order made by the Supreme Court confirming that the Will referred to in the Grant is the last valid Will of the deceased and the Executors appointed are authorised to act on behalf of the Estate.
If there is no Will, an application can be made to the Supreme Court for Letters of Administration. The most appropriate person to apply for Letters of Administration is usually the next of kin. The Administrator then has the same authority to act on behalf of the Estate that an Executor would have.
Probate or Letters of Administration protect those parties that need to deal with the Estate by providing the assurance that they are dealing with the right person.
A Grant of Probate or Letters of Administration is necessary if the assets of the Estate include an interest in real estate, a nursing home or other aged care accommodation bond or bank accounts with more than about $50,000.00 in them. Larger share portfolios will also require Probate.
If the Estate is very small and there is unlikely to be any controversy, the requirement for Probate or Letters of Administration to be obtained might be waived but that decision is up to the institutions holding the assets. Banks will sometimes waive the requirement provided the Executors or Administrators give an indemnity and can provide a consent from each of the beneficiaries.
The Land Titles Office never waive the requirement for Probate or Letters of Administration to be obtained regardless of the value of the land involved. On one occasion we have had to obtain a Grant of Probate in order to discharge a mortgage the deceased held over a family member’s block of land. The loan had been fully paid out years earlier but the mortgage had never been discharged. So despite that fact that there were no other assets in the estate Probate was still required.
Sometimes there are significant superannuation death benefits to be claimed. The Trustee of the superannuation fund may determine that the death benefit is to be paid to the deceased’s Legal Personal Representative. If that is the case they will want to see the Grant of Probate or Letters of Administration first.
Once Probate or Letters of Administration have been granted the Executor or Administrator can redeem any assets, attend to any transfers and otherwise administer the Estate in accordance with the Will, or if there was no Will, in accordance with the relevant rules of intestacy.
The Executor can also represent the Estate in any Court proceedings.