In Australia probate is a court-supervised legal process, where a deceased person’s creditors and dependants are paid from their assets, and the rest of the estate passed onto their beneficiaries. An executor or trustee must produce a Grant of Probate to prove that they have been granted permission from the Supreme Court to administer an estate. If there are no or few assets, then a Grant of Letters of Administration is granted.
A Grant of Probate enables the executor to access the deceased person’s bank account, investment accounts, real estate and other assets. It also allows them to deal with bills, taxes and duties that would otherwise be payable by law. If an executor disposes of the assets before obtaining a Grant of Probate, they can be held personally liable to pay off the deceased’s debts.
A trustee may also need to obtain Letters of Administration, but this typically only occurs when an estate is unable to pay all its debts and there are few assets left over.
The key difference between an executor and a trustee is that an executor disposes of the assets after obtaining their Grant of Probate. They also must deal with any outstanding debts and taxes. A trustee has no such responsibilities and merely manages the assets until they are distributed to the beneficiaries, who step into the deceased’s shoes.
An administrator holds all legal authority over an estate until probate is granted or a grant of letters administration is made.
The process for applying for a grant of probate in Australia can be lengthy and costly.
You want to make sure that the person you choose to make your executor is reliable, organised and detail-oriented because they will be responsible for the legal and financial aspects of your estate.
For example, if you don’t leave a will or die intestate (without a will), then an administrator must apply to the Supreme Court for Letters of Administration before they can deal with your assets. This involves advertising notices in local newspapers and attending court hearings. It is also necessary to file all the relevant documents pertaining to your will or death.
If you die intestate and don’t have any known next of kin, then the Public Trustee must become administrator and they will sell your assets and distribute the money as stated in a formula set out by law.
You can minimise these costs by appointing an executor who lives interstate because they won’t have to attend lengthy court hearings. If you choose this option, you must include the names and contact details of your interstate executors in your will.
How long it takes to get a grant of probate or letters of administration varies from state to state and also depends on the size and complexity of your estate. For example, if you die in NSW with a spouse and children but no will, then the process usually takes 12-18 months. In Queensland it takes around 12 months, or longer if there is a dispute regarding the distribution of assets.