Losing someone close is difficult enough without the added pressure of unfamiliar legal processes. If you have been named as an executor, or you are the closest relative of someone who has died, you may be wondering what is actually involved in finalising their estate. Understanding the paperwork early can make a stressful time more manageable and help you protect the interests of everyone who matters.

The following explains the two main forms of legal authority used to administer a deceased estate in New South Wales, when each applies, and when a formal court grant may not be needed at all.

Why legal authority is often needed

When a person dies leaving assets in their sole name, such as real estate, bank accounts or shares, someone usually needs legal authority to collect those assets, pay any debts and distribute what is left.

In New South Wales, that authority is commonly given by the Supreme Court through either a Grant of Probate or a Grant of Letters of Administration.

Grant of Probate: when there is a valid will

A Grant of Probate is used when the deceased person left a valid will, and that will names an executor who is able and willing to act. The executor is the person chosen by the deceased to carry out the terms of the will.

Probate confirms that the will is valid and that the executor has authority to deal with the estate. Once probate is granted, the executor can:

• Gather in the assets of the estate.
• Pay funeral expenses, taxes and debts.
• Distribute the estate to the beneficiaries named in the will.

Grant of Letters of Administration: when there is no executor who can act

A Grant of Letters of Administration is used when there is no executor able to obtain probate. This most commonly happens where the deceased did not leave a valid will. In that situation, the person is said to have died “intestate”.

Where someone dies intestate, the estate is distributed according to the intestacy laws of New South Wales, which set out which relatives are entitled to inherit and in what shares. The person appointed to manage the estate is called the administrator, rather than the executor.

Letters of Administration with the Will Annexed

Letters of Administration may also be needed even where there is a will. For example, the will may fail to appoint an executor, the named executor may have died, or the executor may be unwilling or unable to act.

Where there is a will but no executor available, or some other problem with the document, the grant is often called Letters of Administration with the Will Annexed. In that case, the administrator must still follow the terms of the will.

The key difference between the two grants

The key difference is the source of authority. Probate confirms the authority of an executor appointed by a valid will. Letters of Administration appoint an administrator where there is no valid will, or no executor who can act.

When a court grant may not be needed

Not every estate requires a grant. Some assets may pass automatically, for example:

• Jointly owned property, which generally passes to the surviving joint owner.
• Superannuation, which may be paid directly to a nominated beneficiary.

Banks and other institutions may also release smaller amounts without a court grant. However, where significant assets are held in the deceased’s sole name, particularly real estate, a grant is often required before those assets can be transferred or sold.

Getting the right advice for your situation

Every estate is different, and working out which grant applies, or whether one is needed at all, is not always straightforward. Acting on the wrong assumption can cause delays and added cost at an already difficult time.

If you are responsible for administering an estate and are unsure of the next step, our experienced team can guide you through the process with care and clarity. Get in touch to discuss your situation.