Process of Obtaining Probate v Letters of Administration
In the state of Victoria, there are various types of grants in obtaining the right to distribute deceased assets or estates by the Supreme Court. These are, through the processes of the role of executor appointed in a valid will or by applying for the role of administrator, through Letters of Administration. However, these vary depending on the situation that the deceased died in, the types of Grants include:
The Grant of Probate
This specific process requires a valid will of the deceased. The executor that is appointed in the will, must apply for the Grant of Probate, in order to attain the right to deal with and distribute, the deceased’s estate to any creditors and beneficiaries.
Generally, probate is obtained in the jurisdiction where the estate or assets were held. If they’re held in multiple states, probate must be resealed in each relevant state. It is highly recommended that the executor hires a legal representative to carry out the process. It ensures that probate is obtained in the correct way and that all relevant application forms and procedures, which are required by the Supreme Court, are complied with in the first instance. It is important to note, that the relevant procedure and form, of the probate application required by the Supreme Court must be at a standard that will be accepted by the Supreme Court, as such legal assistance should be sought. Accordingly, engaging a legal representative, who has the required knowledge and understanding of the process, saves a great deal of time for the executor and further removes the burden of having to prepare and make an appearance at Probate Court to file the documents.
The amount of time taken for the preparation and obtaining of probate can be proven extensive. Therefore, allow a period of 1 to 2 months.
Probate is the most accurate reflection of the deceased’s wishes, as it ensures the person distributing the assets and estate is appointed by them and the beneficiaries named in the will, get a portion of the assets and estate, as specified in the will.
Letters of Administration with the Will annexed
In some circumstances the deceased may have a will, however, does not have an executor appointed or an executor who is able or willing to obtain probate, in this instance, the applicant will be required to go through the Letters of Administration process. In most cases this application is brought by the beneficiary with the largest portion of the estate.
The will must still be proven to the Supreme Court in order to grant the applicant of the letters, entitlement to distribute and deal with the asset, liabilities and estate of the deceased.
When the grant is given, the applicant is then known as the administrator of the estate. In this process, the administrator must distribute the assets of the deceased that is determined by the law in the particular state.
Letters of Administration if deceased died Intestate
If the deceased did not have a valid will, this means they died intestate. Letters of administration is applied for by the closest next of kin. This process is subject to the intestacy rules, which is a formula or order of persons who are entitled to receive proceeds of the deceased estate.
The letters of administration process if the deceased died intestate, can be quite complicated as the state determines who would be entitled to assets and the estate. In addition to the Letters of Administration process, sometimes the burden of providing evidence of why the deceased did not have a valid will arises, which at times can be quite challenging to prove.
Without a valid will and the probate process, disputes may arise between family members and relatives about who would have been the preferred administrator or next of kin. Therefore, the process tends to be easier and more efficient, if there is a valid will made before the person had died. It ensures that there are no setbacks when it comes to obtaining deceased estates or paying of deceased’s liabilities, further, it is also a clear indication of how the deceased wished for his estate to be distributed and to whom.
If you’re an executor or administrator of a will considering undergoing the process of Obtaining Probate or Letters of Administration and need assistance, please contact us on (03) 9942 7790 or email us at nick@karolidis.com.au for further information regarding the Probate Process. Please be aware that this article is an informative summarised guide only and specific legal advice should be sought on your matter.