What is Probate? What are Letters of Administration? Why am I being asked for them?

At its simplest:

• Probate is simply a court order that identifies who is the executor and authorised representative of a deceased person’s estate.

• Letters of Administration is a court order that identifies who has been appointed as the administrator and authorised representative of a deceased person’s estate.

In Queensland, it is not an absolute requirement that a grant of probate or letters of administration be obtained for every deceased person (unlike most other Australian states). This means that some estates can be administered without the time and expense of getting a grant, and so one of the first decisions in administering an estate is whether you need to get it.

Whether or not to get a grant generally depends upon the composition of the deceased person’s estate and assets – as the value of estate assets increases, it becomes more likely that the asset holder (e.g. a bank) will insist on a grant being presented to them before they will release assets to the estate representative.

In addition to this, obtaining a grant generally offers the estate representatives protection from liability, which can make it desirable. For example, obtaining a grant can offer the estate representatives protections from liability:

• As part of obtaining a grant, a notice is published calling on creditors of the deceased person to come forward and notify the estate representatives of their debts, failing which the estate representative is protected from liability for distributing the estate and ignoring any unknown debts; or

• If probate is obtained, and the estate administered, and then a later-dated will of the deceased is found, then the estate representative is not liable for improperly distributing the estate (under the terms of the later-dated will).If a grant of probate is not obtained, then the executor can be liable for improperly distributing the estate.

If you're dealing with the death of a loved one, and uncertain of any issues, Ashton Estate Lawyers can assist whether it is answering only a few questions, or guiding you through the whole process from start to end. Please contact us for a free 15-minute telephone conversation and see how we can help you.