Apply for Grant of Probate or Letters of Administration

By now you have finalised the total estate value by having compiled a detailed list of all the money, property, real estate, personal belongings, chattels, other valuables and any debts of the deceased person. The simplyEstate Assets & Liabilities Inventory helps you to put this together.

In Steps 12 – 25 you have been in contact with the relevant government departments, companies and organisations that the deceased had dealings with to determine the individual value of accounts, benefits and claims that will be paid into the estate. While you were in contact, the organisation may have already informed you if a Grant of Probate or Letter of Administration is required for them to transfer or release funds or titles to the estate based on their deceased estate transfer policy.

Generally speaking, each organisation has a specific Dollar-limit in place. Once the total account, claim or benefit value from that one organisation exceeds their limit, a Grant of Probate or Letters of Administration will be required to authorise the transfer or release of funds into the ‘Estate of the Late’ bank account. You should open such an account as detailed in Steps 19.8 – Why Open an ‘Estate of the Late’ Bank Account and 30.1 – Set-up the Deceased Estate.

The simplyEstate Assets & Liabilities Inventory has identified if you may need to apply for grant of probate or letter of administration based on generic limits. Note that these limits vary between different organisations. It is best to check with each organisation when requesting a transfer, benefit payment or claim. The inventory also helps you determine which assets form part of the estate and which do not, such as jointly owned assets, which generally transfer to the surviving joint owner without needing a Grant of Probate or Letter of Administration.

• When the value of the estate is large;
• when an individual account, benefit or claim transferred to the estate is large (generally over $50,000 but may be lower);
• when you foresee possible disputes and/or claims against the estate by family members, beneficiaries or other parties and you as the Executor or Administrator want to protect yourself;
• when assets are owned by the deceased person in their sole name or as tenants in common (the deceased person’s share); and/or
• when an organisation has specific requirements for Grant of Probate or Letter of Administration to release funds or essets.

The following matrix will help you determine if a Grant of Probate is required by checking this for each asset identified.

*The Dollar-limit of $50,000 is an average figure and varies between government departments, companies and organisations, which you should confirm with each. This is illustrative only and serves as a guide as per our Terms & Conditions, which are available here.

• provide the deceased person’s details to the organisation that will release the asset;
• prove the death by providing the Death Certificate;
• provide the Will if available;
• establish your relationship to the deceased;
• provide your proof of identity; and
• any other document required to initiate the transfer.

Sometimes an organisation will also ask that the Executor or Next of Kin provide further information and sign an indemnity and release form to protect the organisation from other people making the same or similar claims on behalf of the same estate.

If the value is slightly above their value limit, you may be able to request special consideration from that organisation. Especially if Grant of Probate or Letter of Administration would only be needed for one organisation then an exception may be granted given the time, cost and effort required for the application to the Supreme Court. You should request, discuss and negotiate this with an organisation were this applies; best by issuing a formal letter by registered post.

27.2.1 Grant of Probate with the Will Annexed

Where a Will is in place and you are nominated as the only Executor or one of many Executors and you take on the role by yourself or with other Executors nominated, then you should apply for a Grant of Probate with the Supreme Court in the relevant State/Territory. Refer to below Steps 27.3 and 27.4 to determine who is eligible to apply and to which court you need to apply to in your situation.

27.2.2 Letter of Administration with the Will Annexed

Where a Will is in place but none of the Executors nominated in the Will are willing or able to take on the role, the eligible person who will take on the role of Administrator should apply for Letters of Administration with the Will annexed with the Supreme Court in the relevant State/Territory. Refer to below Steps 27.3 and 27.4 to determine who is eligible to apply and to which court you need to apply to in your situation.

27.2.3 Letters of Administration without a Will

Where no Will is in place (also referred to as Intestate), the eligible person should apply for Letters of Administration with the Supreme Court in the relevant State/Territory. Refer to below Steps 27.3 and 27.4 to determine who is eligible to apply and to which court you need to apply to in your situation.

27.3.1 Grant of Probate with the Will Annexed

With a Will that nominates one Executor

If the Executor nominated in the Will accepts the role to administer the deceased estate, the Executor can apply to the Supreme Court for a Grant of Probate.

If the Executor nominated in the Will has passed away, is unable or unwilling to take on the role to administer the deceased estate, one of the Beneficiaries can apply as the Administrator (not called Executor in this case) to the Supreme Court for Letters of Administration with the Will annexed as outlined in Step 27.3.2 and provide further documentation as outlined in Step 27.9 below.

With a Will that nominates multiple Executors

A Will may nominate multiple Executors by specifying a primary Executor (also known as instituted Executor) and a secondary Executor (also known as substituted Executor).

If the primary Executor accepts the role to administer the deceased estate, they can apply to the Supreme Court for Grant of Probate. If the secondary Executor accepts the role to administer the deceased estate, they can apply to the Supreme Court for a Grant of Probate if the conditions for substitution as outlined in the Will have been met.

A Will may also nominate multiple Executors that are not distinct as primary or secondary Executors and hence must act jointly (joint Executors), meaning they all are to be Executors and administer the deceased estate together. In this situation all Executors can apply to the Supreme Court together. If, however, one of the Executors has passed away, is unable or unwilling to take on the role to administer the estate, the remaining Executor(s) can apply for Grant of Probate and provide further documentation as outlined in Step 27.9 below.

Where a Will nominates multiple Executors and an Executor has passed away, is unable or unwilling to take on the duty, either an additional form, an Affidavit explaining the situation and, where an Executor has passed away, the Death Certificate of that Executor should be provided by the Executor who is applying to the Supreme Court.

27.3.2 Letter of Administration with the Will Annexed

With a Will that does not name an Executor

If the Will does not name an Executor, depending on your State/Territory the below listed persons can apply as the Administrator (not called Executor in this case) to the Supreme Court for Letters of Administration with the Will annexed. To avoid a dispute with other eligible applicants and Beneficiaries, it is recommended to agree your intention to apply prior to doing so as other eligible persons may also apply. A second application for the same deceased estate would mean your application is contested and may complicate matters unnecessarily.

With a Will and none of the Executors will apply

If the Executor nominated in the Will has passed away, is unable or unwilling to take on the role to administer the deceased estate, depending on your State/Territory the below listed persons can apply as the Administrator (not called Executor in this case) to the Supreme Court for Letters of Administration with the Will annexed and provide further documentation as outlined in Step 27.9 below.

The following persons are eligible to apply as Administrator:

27.3.3 Letters of Administration without a Will

Without a Will

If there is no Will and the deceased person passed away Intestate, depending on your State/Territory the below listed persons can apply as the Administrator (not called Executor in this case) to the Supreme Court for Letters of Administration. To avoid a dispute with other eligible applicants and Beneficiaries, it is recommended to agree your intention to apply prior to doing so as other eligible persons may also apply. A second application for the same deceased estate would mean your application is contested and may complicate matters unnecessarily.

The following persons are eligible to apply as Administrator:

An application needs to be made based on the State/Territory in which the assets that require a Grant of Probate or Letters of Administration for release and transfer to the estate are registered and/or located. Each Supreme Court only has jurisdiction over their State/Territory. If the deceased person holds assets registered and/or located in more than one State/Territory that require a Grant of Probate or Letters of Administration, you may need to apply to multiple Supreme Courts or have the original Grant of Probate or Letters of Administration resealed in the relevant court(s).

The simplyEstate Assets & Liabilities Inventory helps you capture all assets and liabilities and immediately provides you with a guide if a Grant of Probate or Letter of Administration application are likely needed, which type of application and in which State/Territory.

• The Statement of Assets & Liabilities should be completed before applying to the Supreme Court for Grant of Probate or Letters of Administration as it forms part of the application. This document outlines the value of the estate, what it is made up of and protects you as the applicant in case a Beneficiary or other person lodges a dispute with the Supreme Court against the estate. The simplyEstate Assets & Liabilities Inventory is a useful tool to compile all the estate’s assets and liabilities in one place. Refer to Steps 15 – 26 to determine the estate value if not already completed.
• Should the Statement of Assets & Liabilities change after lodgement, an amended Statement can be submitted to the Supreme Court with an Affidavit to ensure an accurate Statement is on file.
• An application for Grant of Probate or Letter of Administration can be lodged earliest 14 or 15 days after the date of advertising the notice of intended application (refer to Step 27.8).
• An application for Grant of Probate or Letters of Administration made six months after the death or later, requires an explanation for the delay in an Affidavit with the application.
• If the name of the Executor has changed and is different to the name in the Will, an explanation is to be provided in the Affidavit and the marriage certificate or other evidence of the name change attached.
• If the deceased person married, divorced or a marriage was annulled after the date the Will was signed, you should check the validity of the Will with one of our trusted lawyers near you.
• Refer to the person making the application as Plaintiff when completing the forms and documents for Grant of Probate or Letter of Administration.
• The date on which the documents are completed should be the date of the document.

Applications for Grant of Probate or Letter of Administration can vary in complexity.

• one Executor who has agreed to accept the duties;
• multiple Executors are nominated who have agreed to accept the duties and act jointly; or
• multiple Executor are nominated and the Executor who is unable or unwilling to accept the duties provides the applicant with the necessary documentation.

In these instances, the application may be completed by yourself by following the process outlined on this website or with help from a legal representative.

However, where no Will is in place or a dispute between multiple nominated Executors has arisen, it is recommended to seek legal advice to ensure you have the necessary information to make a complete application, taking the issues into account.

The biggest challenge when applying yourself (also called applying as individual, plaintiff or self-represented) is to ensure the application documents are drafted correctly and comprehensively. Often courts do not provide standard forms and hence a good understanding of the rules is required to ensure your specific circumstances are captured correctly. simplyEstate provides documents that are available on the Supreme Court websites below as a guide, but these may not capture all details for your circumstances and may need to be drafted by a lawyer.

If you have a question or would like to discuss this particular step, you can email us or find out what Executor & Administrator Support we offer to discuss the general nature of your situation. simplyEstate has partnered with Trusted Partners across Australia as listed below, who can provide you with an initial assessment and ongoing help if you choose so.

• Original Will (if the original cannot be found and you have a copy you can apply but you will need an affidavit explaining your attempts in finding the original Will and is more complicated);
• Original and certified copy of the Death Certificate;
• Relevant application documents;
• Affidavit supporting your application; and
• Lodgement fee.

• Form or Affidavit renouncing the duties of Executor; and
• If a nominated Executor has passed away, the Death Certificate of the nominated Executor and an Affidavit by the applicant explaining the reason for applying without the deceased Beneficiary.

• Always type or neatly hand-write all documents and forms;
• The original Will should not be modified in any way;
• When photocopying a Will, do not remove staples or bindings;
• Do not fold application documents;
• Do not attach anything to the Will with staples or paperclips;
• Always staple documents that belong together in the top left corner; and
• It is highly recommended to always photocopy all documents supplied to the Supreme Court Registry for your own records.

If you have determined that a Grant of Probate or Letters of Administration is required, you will first need to serve, publish or advertise a notice of your intention to apply with the Supreme Court.

Note: This is not the same as notice for distribution of the estate, which is covered in Step 34.7 – Publish Notice of Intent to Distribute.

• Creditors (people who are owed money by the deceased estate) of the estate to make a claim;
• Family members or other persons to make a family provision claim or any other claim;
• Other nominated Executors to be informed of the intent and discuss the intended application; or
• Anyone who may have another Will to discuss the intended application.

Depending on the State/Territory to which you will be applying for a Grant of Probate or Letter of Administration the following process and timeframe apply:

The probate application process and documents vary in each State/Territory. simplyEstate has compiled all the common information and documents for your selected State/Territory for your convenience below.

Note: in some applications the Executor applying for a Grant of Probate or Letter of Administration are referred to as plaintiffs.

Depending on the State/Territory to which you will be applying for a Grant of Probate or Letters of Administration, the following process applies: