Grant of Probate Application or Applying for Letters of Administration

27.1.1 Overview

By now, you would have determined 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 and automatically calculate what forms part of the Estate based on the ownership of each asset, liability and personal belonging.

In Steps 12 – 25 you have been in contact with the relevant government departments, companies and organisations that the deceased person 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 that a Grant of Probate or Letters of Administration is required for them to transfer or release funds or titles to the Estate.

Probate is the judicial or legal process that a Testator's Will (the deceased person's Will) undergoes to prove that it is valid so it can function as a public document, and that it is considered the genuine final testament of the deceased. It formally recognises the Executor to complete the Estate Administration.

In the absence of a Will, Probate will establish that the laws of intestacy in the state or territory where the deceased resided at the time of death would apply. In such cases, the Supreme Court grants someone (typically the Next of Kin) Letters of Administration to begin the Estate Administration process.

Generally speaking, a Grant of Probate or Letters of Administration will be requested each time you request a transfer of property or release of funds into the 'Estate of the Late' bank account or Estate for finalising and distribution. An 'Estate of the Late' bank account should be opened while you wait for probate, which is covered in Steps 19.12 – Why Open an 'Estate of the Late' Bank Account and 30.3 – Set Up Estate Bank Account (Estate of the Late Account).

27.1.2 Why Organisations and Companies Require Probate

• know that the deceased person has actually passed away and this was confirmed by the Supreme Court;
• ensure that the organisation is dealing with the official representative (Executor or Administrator) of the Estate to avoid fraudulent claims;
• be certain that the Supreme Court has reviewed the Will(s) (where available) for its validity and determine which was the latest Will to avoid a claim by someone who was superseded by a newer Will appointing someone else as Executor; and
• have confidence that where no Will was in place, the Administrator has been properly identified and appointed by the Supreme Court to act on the Estate's behalf per the relevant laws to protect the asset they will transfer.

27.1.3 Why Executors and Administrators Should Apply for Probate

• follow due process by properly advertising the Notice of Intended Application and comply with the necessary timeframes required by law (see Step 27.10 Publish the Statutory Notice below for more details);
• avoid duplication where another Will may exist appointing someone else as Executor who has applied or will also apply;
• reduce your personal liability risk by needing to sign indemnity and release forms;
• reduce your personal liability risk for claims made by another Executor, family member, Beneficiary or creditor against the Estate or yourself; and
• reduce the likelihood of claims made against the Estate costing substantial funds and taking up time.

27.1.4 When Deceased Estate Probate Is Needed

• the Estate value is greater than $50,000;
• the deceased person had bank accounts, property, shares, business interests, other assets or liabilities in their own name or as tenants in common;
• you deal with the Australian Taxation Office (ATO) for previous individual tax returns or lodging an Estate tax return;
• multiple Wills and codicils are in place or the Will may not be executed properly;
• the Will requires a distribution to a vulnerable Beneficiary and/or a charitable organisation;
• you foresee or have already experienced 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;
• the deceased person divorced, married or re-married after making the Will;
• the Will excludes immediate family members, step-children, ex-spouses and/or ex-defacto partners;
• the deceased person had complex asset structures (including a trust, business, self-managed super fund (SMSF), shares and other investments);
• the superannuation and/or life insurance benefit will be paid to the Estate;
• assets are located in other states/territories or overseas; and/or
• the deceased person lived in an aged care home and a RAD or bond will be claimed by the Estate.

Without a Grant of Probate or Letters of Administration, some organisations and companies may refuse to transfer funds, assets and/or liabilities to the Estate, effectively stopping you from finalising and distributing the Estate.

• Grant of Probate Application With the Will Annexed
• Letters of Administration With the Will Annexed
• Letters of Administration without a Will

27.2.1 Grant of Probate Application 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.
Read the following Steps 27.3 – 27.11 to determine who is eligible to apply and how to apply.

Request a fixed-fee Grant of Probate application quote from our Trusted Partner. With the right legal advice, you can avoid submitting an incomplete application that will be rejected.

27.2.2 Letters 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.
Read the following Steps 27.3 – 27.11 to determine who is eligible to apply and how to apply.

Request a fixed-fee Letters of Administration application quote from our Trusted Partner. With the right legal advice, you can avoid submitting an incomplete application that will be rejected.

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.
Read the following Steps 27.3 – 27.11 to determine who is eligible to apply and how to apply.

Request a fixed-fee Letters of Administration application quote from our Trusted Partner. With the right legal advice, you can avoid submitting an incomplete application that will be rejected.

The situation and type of application that needs to be made determine who will be applying to the Supreme Court for a Grant of Probate or Letters of Administration.

27.3.1 Grant of Probate Application With the Will Annexed

There are instances when it is clear the Testator (person who made the Will) had nominated only one Executor.

However, since situations vary, a Testator may also appoint more than one Executor of the Estate, even going so far as specifically designating who will serve as primary Executor and secondary Executor. Sometimes, an Executor or Executors may also refuse or be unable to perform their role for various reasons (including illness or death).

These varying circumstances will influence the application process, specifically who will be applying for a Grant of Probate or Letters of Administration.

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 27.11 below.

Request a fixed-fee Grant of Probate application quote from our Trusted Partner. Avoid an incomplete application being rejected.

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 are 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.

Request a fixed-fee Grant of Probate application quote from our Trusted Partner. Avoid an incomplete application being rejected.

27.3.2 Letters of Administration With 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 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 that you agree upon 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.

Request a fixed-fee Letters of Administration application quote from our Trusted Partner. This way, you can avoid submitting an incomplete application that will be rejected.

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 27.11 below.

The following persons are eligible to apply as Administrator:

Request a fixed-fee Letters of Administration application quote from our Trusted Partner. This way, you can avoid submitting an incomplete application that will be rejected.

27.3.3 Letters of Administration 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:

Request a fixed-fee Letters of Administration application quote from our Trusted Partner. This way, you can avoid submitting an incomplete application that will be rejected.

An application needs to be made based on the state/territory in which the assets 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 automatically calculates the total Estate value that will need to be provided with the Grant of Probate or Letters of Administration application.

Request a fixed-fee Letters of Administration application quote from our Trusted Partner, so you can avoid submitting an incomplete application that will be rejected.

The process of being granted Probate can take anywhere between two to six weeks from the date of application. In general, however, the Deceased Estate Administration process usually takes around six to 12 months in Australia. The duration depends on the types of assets that need to be dealt with. If property that's part of the Estate needs to be sold, Probate can take a lot longer to finish.

DIY Probate applications can be delayed significantly because of errors or omissions, missing documents, incorrect declarations, or any incorrect applications of procedure.

How much does probate cost, you might ask. The answer: It all depends on the state or territory you apply in and, in some states, how large the Estate is (i.e., including the assets and liabilities therein) as well as the gross value of Estate assets. The same can be said of Letters of Administration costs.

The logic behind this is that the size and value of the Estate determine how much work is required to obtain Probate and to administer assets. Probate costs include government-scaled costs for obtaining a Grant of Probate from the Supreme Court and negotiated legal costs for administering the Estate assets and liabilities.

• The Statement of Assets & Liabilities should be completed before applying to the Supreme Court for a Grant of Probate or Letters of Administration as the figures form 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 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 version can be submitted to the Supreme Court with an Affidavit to ensure an accurate statement is held on file.
• An application for Grant of Probate or Letters of Administration can be lodged at the earliest 14 or 15 days after the date of advertising the notice of intended application (refer to Step 27.10 below).
• A Grant of Probate or Letters of Administration application made six months after the death or later, requires an explanation for the delay in an Affidavit.
• If the name of the Executor has changed and is different to the name in the Will, an explanation is to be provided in an 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 Letters of Administration.
• The date on which the documents are completed should be the date of the document.

Grant of Probate or Letters of Administration applications can vary in complexity.

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

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

However, simplyEstate always recommends having a lawyer review your situation and make the application to ensure all risks are identified, all appropriate documents, forms, affidavits and fees are submitted properly to avoid the court's rejection.

The biggest challenge when applying yourself (also called applying as individual, plaintiff or self-represented) is ensuring the application documents are drafted correctly and comprehensively.

Often, courts do not provide standard forms and hence, a good understanding of the laws and Probate rules are required to ensure your specific circumstances are captured correctly. simplyEstate provides documents that are available on the various Supreme Court websites below as a guide, but these may not capture all details for your circumstances and your application may need to be drafted by a lawyer.

Request a fixed-fee Probate application quote from our Trusted Partner, so you can avoid submitting an incomplete application that will be rejected.

27.9.1 Overview

It is important to have all necessary documents completed and appropriately certified, witnessed and sworn to or affirmed prior to submitting your application.

• 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 the process 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.

27.9.2 The Function and Significance of Affidavits

An affidavit is a written statement made under oath and serves as a legally binding document used to present facts or evidence in various legal matters.

• Evidence: Affidavits are used to present evidence to the court or relevant authorities.
• Verification: They confirm the truthfulness or veracity of statements made therein.
• Documentation: Affidavits record information relevant to legal proceedings.

• Probate and Estate Administration: Different types of affidavits are commonly used in the Estate Administration process in Australia, such as the Affidavit of Executor and Probate Affidavit.
• Family Law Matters: In divorce or child custody cases, parties may submit affidavits to support their claims.
• Criminal Proceedings: Witness statements can be presented as affidavits in criminal cases.
• Civil Litigation: Parties may file affidavits to present their version of events.
• Statutory Declarations: These affidavits are typically used for various administrative and legal purposes, such as visa applications.

• Estate Inventory: Executors often prepare affidavits detailing the deceased person's assets and liabilities. This inventory assists in asset distribution.
• Beneficiary Identification: To confirm the identities of Beneficiaries, their relationship to the deceased, and entitlements under the Will, this type of affidavit may be required.
• Witnessing Wills: In some cases, witnesses to a Will may be required to provide affidavits confirming the Will's validity.
• Challenging a Will: Beneficiaries or interested parties may submit affidavits to challenge a Will's validity or the circumstances surrounding its creation.
• Asset Transfer: Affidavits may be required when transferring specific assets, such as real estate, from the Deceased Estate to the Beneficiaries.
• Debts and Claims: Executors or Administrators may prepare affidavits to validate and address outstanding debts and claims against the Estate.
• Estate Accounts: Affidavits can be used to provide an account of the Estate's financial transactions, ensuring transparency.

In Estate Administration, affidavits play a crucial role in documenting and verifying critical information. They help maintain transparency, substantiate claims, and ensure that the Estate is administered in accordance with the law.

Executors, Administrators, Beneficiaries, and legal professionals often rely on affidavits to facilitate the efficient and legally sound distribution of assets.

27.9.3 Some Important Reminders

• 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 may 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 in which you will be applying for a Grant of Probate or Letters 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 making a Grant of Probate application is referred to as plaintiff.

Depending on the state/territory to which you will apply for a Grant of Probate, the following process applies:

Similar to applying for a Grant of Probate, the process, documentary requirements and fees that need to be paid when applying for Letters of Administration depend on the state/territory. simplyEstate has compiled all the common information and documents for your selected state/territory for your convenience below.

Note: In some applications for Letters of Administration, the person or Next of Kin filing the document is referred to as the plaintiff.

Depending on the state/territory to which you will be applying for Letters of Administration, the following process applies:

After submitting your application with the relevant Supreme Court, you may wonder what happens after Probate is granted.

The Grant of Probate or Letters of Administration will formally empower you to act on behalf of the Deceased Estate and you can transfer property (all assets and liabilities in the deceased person's name) to the Estate and then from the Estate/Executor to the Beneficiary or Beneficiaries.

What Happens After Probate?

• Seek inheritance tax advice and find out about tax effective Estate distribution in Australia
• Open a testamentary trust if this is required in the Will
• Set-up an Estate bank account and request Deceased Estate transfer of property
• Claim Executor commission and testamentary expenses
• Prepare the Deceased Estate tax return
• Prepare the Estate distribution letter to Beneficiaries
• Finalise and distribute the Estate to Beneficiaries