Applying for the Right to Administer a Deceased Estate

When a family member dies, it is the duty of the executor to administer the deceased’s estate.  This generally means:

• Arranging the funeral.
• Making enquiries to determine the liabilities of the deceased.
• Gathering their assets.
• Paying out any creditors.
• Satisfying any taxation and / or accounting obligations of the estate.
• Distributing the assets to the beneficiaries pursuant to the terms of the Will or the rules of intestacy if the deceased died without a Will.

However, before the executor can start this process, they must, in most cases, obtain a grant of probate from the Supreme Court, which is the court’s official authorisation that confirms that the executor has the right to administer the estate and deal with its assets and liabilities.

If the deceased died with a Will, they will have named the executor in their Will.  It will then be up to that person to apply for the grant of probate if they are willing and able to do this.  Conversely, if the deceased did not leave a Will, then the next of kin has the right to apply for a grant of letters of administration and be appointed as the executor.  When there is a Will, but the named executor is unwilling or unable to act and someone else is making the application instead, this substitute person will apply for a grant of letters of administration with a Will to become the executor.  Despite, the semantics, all these grants allow the executor to do the same thing – to administer the estate.

Nevertheless, the application process for a grant of probate or letters of administration can be complex depending on the circumstances, but in all cases, generally involves advertising to the public, notifying government departments, waiting out notice periods, and preparing and filing the application itself.  There are also various fees that must be paid.

Once filed, the Supreme Court Registry will process the application and, assuming that all criteria have been met, they will then grant probate or letters of administration.  If the applicant has missed something however, then the Registry will issue a requisition notice confirming what needs to be rectified for the application to be successful.

The timeframes for the Registry to process an application will largely depend on to which Supreme Court Registry you are applying and how busy they are, but it generally takes anywhere between two to eight weeks.  Unfortunately, the Registry will rarely expedite an application, so applicants are at their mercy when it comes to processing speeds.

Considering the time commitment and complexity of making applications for grants of probate or letters of administration, it is usually in the best interests of the executor-to-be to engage a law firm to assist them apply for the right to administer a deceased estate.  So, if you have been named the executor of a Will and need to apply for a grant of probate, or you otherwise believe that you will need to apply for a grant of letters of administration, please contact our Wills & Estates Team to discuss how we can assist you.

Contact Steven Hodgson for more information about deceased estate matters.

Steven Hodgson | Senior Lawyer
T: +61 (7) 5575 8011  | E: s.hodgson@salernolaw.com.au