Probate vs Letters of Administration: What Is the Difference?

Craigieburn Lawyers | Expert Estate Lawyers Near You

When a loved one passes away, navigating the legal process of finalising their estate can be daunting, especially if you are unfamiliar with the difference between Probate and Letters of Administration. Both are legal processes in Victoria used to manage and distribute a deceased person’s estate. But when is each applicable? And how do they work?

At Craigieburn Lawyers, we guide local families through the estate administration process with compassion and clarity. In this article, we explain the key differences between probate and letters of administration, when they are required, and how our expert team can assist you every step of the way.

What Is Probate?

Probate is the legal process of proving and registering a deceased person’s last valid Will with the Supreme Court of Victoria. The Court grants probate to the named executor(s) -the person or persons nominated in the Will to carry out the deceased’s wishes and administer the estate.

The Grant of Probate gives the executor legal authority to take control of the deceased’s estate, including accessing bank accounts, paying debts, transferring or selling real estate, and distributing assets to the beneficiaries named in the Will.

In Victoria, probate is usually required when the deceased owned real estate in their sole name, held substantial financial assets, or when a financial institution requires a formal grant before releasing funds.

What Are Letters of Administration?

Letters of Administration are issued by the Supreme Court of Victoria when a person dies without a valid Will, a situation known as intestacy. This process allows the Court to appoint an eligible person, usually a close next of kin such as a spouse, domestic partner, or adult child to act as the administrator of the estate.

The administrator performs a similar function to an executor, but instead of following the instructions in a Will, they must distribute the estate according to the rules of intestacy under the Administration and Probate Act 1958 (Vic). These rules set out a strict formula for which relatives inherit and in what proportions.

Key Differences Explained

The primary difference between probate and letters of administration is whether or not the deceased left a valid Will. If there is a valid Will and a named executor, then a Grant of Probate is sought. If there is no valid Will, or no executor able or willing to act, then an application for Letters of Administration is made.

Probate involves carrying out the deceased’s specific wishes as set out in the Will. In contrast, Letters of Administration require distribution of the estate according to intestacy laws, which may not reflect the deceased’s actual intentions.

Another key distinction is the identity of the person applying. In probate, the applicant is the executor named in the Will. In an intestacy, the applicant is usually the deceased’s next of kin and must justify their eligibility to act as administrator.

What If the Will Does Not Name an Executor?

Sometimes, a Will may exist but does not name an executor, or the named executor is deceased, unable to act, or unwilling to apply. In these cases, a family member or another interested party can apply for Letters of Administration with the Will annexed. This process allows the Court to appoint an administrator who will distribute the estate in accordance with the terms of the Will, even though they were not formally appointed as executor.

The Legal Process: Step-by-Step

Whether applying for probate or letters of administration, the process generally involves the following steps:

1. Investigate the Estate

The applicant must locate the original Will (if any), obtain the death certificate, identify and value the deceased’s assets and liabilities, and determine whether a grant is required.

2. Advertise Your Intent to Apply

You must publish a notice of intention to apply for probate or administration on the Supreme Court of Victoria’s website. A minimum of 14 days must pass before submitting the application.

3. File the Application with the Court

After the 14-day waiting period, the application is filed with the Supreme Court, along with supporting documents such as an affidavit of the applicant, a certified copy of the death certificate, and an inventory of assets and liabilities.

4. Receive the Grant

If the Court is satisfied with the application, it will issue either a Grant of Probate or Letters of Administration, depending on the circumstances. This document gives the executor or administrator legal authority to deal with the estate.

What Happens After the Grant Is Issued?

Once the grant is received, the executor or administrator can begin finalising the estate. This typically includes:

• Accessing bank accounts and superannuation;

• Paying outstanding debts and liabilities;

• Transferring or selling real estate;

• Distributing the remaining assets to beneficiaries.

The person administering the estate must keep accurate records and ensure they act in the best interests of the beneficiaries. Failure to do so may result in legal liability.

Potential Risks Without Legal Guidance

Many people attempt to administer estates without legal assistance, only to encounter delays, costly errors, or family disputes. This is particularly common in intestacy cases where competing claims may arise, or when there is uncertainty about the identity of lawful beneficiaries.

Even in seemingly simple cases, professional assistance ensures that the grant is issued without unnecessary delays, tax implications are properly managed, and the estate is administered in compliance with the law.

At Craigieburn Lawyers, we have assisted many families throughout Victoria including in Craigieburn, Donnybrook, Roxburgh Park, and Mickleham with navigating complex estate matters smoothly and efficiently.

How Craigieburn Lawyers Can Help

We offer fixed-fee and affordable probate and estate administration services. Our experienced team can:

• Advise you on whether probate or letters of administration are required;

• Prepare all necessary documentation and court filings;

• Liaise with banks, super funds, and government agencies on your behalf;

• Assist in locating and valuing estate assets;

• Manage asset distribution and handle any disputes;

• Represent you if someone contests the Will or challenges the distribution.

We take a compassionate and practical approach to estate matters, understanding the emotional and legal challenges involved.

What to Expect in a Consultation

At your first consultation with Craigieburn Lawyers, we will:

• Review your specific situation, including whether a valid Will exists;

• Outline the most appropriate legal process;

• Provide a tailored plan of action and timeline;

• Offer a clear estimate of our legal fees and court costs;

• Answer your questions in plain English.

Our goal is to make the probate or administration process as smooth and stress-free as possible.

Conclusion

If you have recently lost a loved one and are unsure whether you need probate or letters of administration, the best first step is to seek professional advice. Both processes serve similar purposes but arise in different legal contexts, depending on whether a valid Will exists and who is available to manage the estate.

At Craigieburn Lawyers, we are here to help. Our experienced team is based locally and has the knowledge and sensitivity to guide you through the probate or administration process with confidence and care.

Contact us today to book your free consultation and find out how we can help you administer your loved one’s estate with professionalism and respect.