What is Probate and Letters of Administration?

When someone passes away in most cases an application must be made to the Supreme Court (“Court”) so that the deceased’s property can be dealt with appropriately.

What is Probate?

Probate is the process of applying to the Court to validate and prove a deceased person’s Will whereby you present to the Court the Will of the deceased, the death certificate of the deceased, and a prepared application in order to obtain a Grant of Probate of the Will from the Court.

What is Letters of Administration?

Letters of Administration is the process of applying to the Court for the appointment of a legal representative for a deceased’s estate where the deceased person has not left a valid Will or where the deceased has left a Will but has no Executor that is willing and able to apply for a Grant of Probate.

So, who is responsible for applying to the Court?

The type of application required is determined by whether the deceased left a valid Will or not. The answer to this question will help identify the person responsible for applying to the Court.

With a Will naming an Executor

Grant of Probate

The Executor is the person or entity named in the deceased’s Will.

The Executor therefore is responsible for applying to the Court for a Grant of Probate and carrying out the directions in the Will.

The intending Executor must prepare and file an application with the Court, and that application will include the Will of the deceased, the death certificate of the deceased, and a list of the assets and liabilities of the deceased.

If the intending Executors application is successful, the Court will issue a Grant of Probate which validates the deceased’s Will which then allows the Executor to deal with the deceased’s property (this part is known as the administration of the estate).

With a Will but no Executor is willing or able

Grant of Letters of Administration with Will annexed

There are occasions where a person passes away leaving a valid Will that names an Executor who is unwilling or unable (i.e. the named Executor has predeceased the deceased, or has a mental illness, or simply does not want to be the Executor).

These applications are complex and legal advice should be obtained as it is necessary to identify the appropriate person who may apply either on behalf of, or in the place of, the named Executor.

The intending applicant is not known as the Executor but, instead, the Administrator.

The intending applicant must prepare and file their application with the Court together with the Will of the deceased, the deceased’s death certificate and further documents in support of the applicants standing.

If the intending applicant is successful, the Court will issue a Grant of Letters of Administration with the Will annexed thereby validating the deceased’s Will, appointing the applicant as the Administrator and allowing the Administrator to deal with the deceased’s property and commence their administration.

No valid Will

Grant of Letters of Administration

Reasonable search and enquiry must be made to locate a deceased person’s Will.

If no Will can be located, it is necessary to identify an appropriate person or persons to make an application to the Court for a Grant of Letters of Administration.

These applications are complex and legal advice should be obtained as it is necessary to identify the appropriate person to make the application.

The intending applicant must prepare and file their application with the Court together with the deceased’s death certificate and further documents in support of the applicants standing.

If the intending applicant is successful, the Court will make a Grant of Letters of Administration thereby appointing the applicant as the Administrator and allowing the Administrator to deal with the deceased’s property and commence their administration.

Once the Court has issued a grant, the Executor or Administrator may commence their administration of the deceased’s estate according to the Will of the deceased or according to the relevant law if the deceased did not leave a Will.

It is important to remember that there are instances where an application to the Court for a grant is not required and so you should consider taking legal advice before you begin the process.