Grant of Probate vs Letters of Administration (NSW): What is the Difference?
When someone dies, their assets (the “estate”) usually can’t be dealt with until the Supreme Court verifies the circumstances and issues a “grant” to the person who has legal authority to administer the estate. In NSW, that authority is typically either a Grant of Probate or a Grant of Letters of Administration. Both grants allow a person authorised by either the Will or at law to collect, manage and distribute estate assets. The circumstances will determine which type of grant you will need.
What is a Grant of Probate?
A Grant of Probate is an order of the Supreme Court confirming that a deceased person’s Will is valid and that the person named in the Will as executor has authority to administer the estate.
When is Probate required?
Probate is usually required where:
- there is a valid Will, and
- the Will appoints an executor who is willing and able to act.
Once Probate is granted, the executor can generally:
- access bank accounts and investments held solely in the deceased’s name,
- sell or transfer real estate owned by the deceased,
- pay debts and liabilities of the estate, and
- distribute the estate according to the Will.
What are Letters of Administration?
A Grant of Letters of Administration is an order of the Supreme Court authorising an administrator to manage and distribute the estate.
Letters of Administration are commonly needed when:
- the deceased did not leave a Will (intestacy), or
- there is a Will but no executor can or will act (for example, the executor has died, lacks capacity, or renounces).
Common Types of Letters of Administration
- Letters of Administration (no Will): the estate is distributed under NSW intestacy laws to a person who has an interest in the Estate. However, complex rules exist as to who has “standing” to apply.
- Letters of Administration with the Will annexed: there is a Will, and the estate is distributed under the Will, but someone other than the named executor is appointed to administer it.
Key differences at a glance
| Topic | Grant of Probate | Letters of Administration |
|---|---|---|
| Is there a Will? | Yes (a valid Will is being proved) | Often no Will; or a Will exists but no executor can act |
| Who is appointed? | Executor named in the Will | Administrator (usually an eligible relative or interested party) |
| Distribution rules | According to the Will | According to intestacy laws (or according to the Will if “with the Will annexed”) |
| Main purpose | Confirm the Will and the executor’s authority | Appoint someone to administer the estate when Probate isn’t available |
Summary
Both Probate and Letters of Administration are court-issued authorities designed to ensure estates are administered properly. The difference is mainly whether there is a Will with an executor able to act. If you’re unsure which grant applies in your situation, getting tailored advice early can help avoid delays and reduce stress for families managing an estate.
This article is general in nature and does not constitute legal advice. You should always seek legal advice before making any type of application to the Court and for legal matters generally.
