Probate and Letters of Administration are Court Orders – they are required in order to administer an estate that has any individual assets that are valued $15,000.00 or more.

These Orders are granted by the High Court, which allows an Executor or Administrator to manage the deceased person’s Estate.

Probate

If someone passes away with a valid Will, an application is filed in the High Court to obtain Probate.  Probate validates the Will and allows the Executor/s appointed under the Will to manage the Estate. Once the Estate has been administered appropriately, the Estate is then distributed in accordance with the terms of the Will of the deceased.

Letters of Administration

If someone passes away without a Will, an application is filed in the High Court to obtain Letters of Administration. These are granted to an Administrator, who is authorised to administer the Estate in accordance with the Administration Act 1969.

The person who applies to be the Administrator is determined by the specific order of priority set out in r 27.35 of the High Court Rules 2016.

Once the Estate has been appropriately managed, the Administrator is then required to distribute the Estate in accordance with s 77 of the Administration Act 1969.

If you are the surviving spouse and or de facto partner of the deceased, you are required to make an election about how you wish to claim your share: either to receive you entitlements under the Administration Act, or to claim for your entitlements under the Property (Relationships) Act 1976 and seek further provision under the Family Proceedings Act 1980. Legal advice should be sought before making an election.

Special thanks to Chloe Cochrane for preparing this article.