What is the difference between Probate and Letters of Administration?
Probate and Letters of Administration are both official documents granted by the Supreme Court of NSW determining the legal representative who has authority to deal with the estate of the deceased. Both are governed by the Probate and Administration Act 1898 (NSW) and the vesting of real and personal property in the representative is provided by s 44 of this Act.
The key difference is that a Probate is issued when an executor has been named in the deceased’s will, whereas Letters of Administration is issued when no will can be located, no executor is named in a will or the named executor is unable to act. Simply, if an individual dies without a will, the correct application to the Supreme Court is one for Letters of Administration, not for Probate.
Applying for Letters of Administration is a more costly and time consuming exercise than an application for a Grant of Probate as more information is to be provided to the Supreme Court. It also takes an emotion toll on the deceased’s family as it creates uncertainty about what will happen with the deceased’s estate.
The legal representative in Probate is an executor and in Letter of Administration is an administrator. Executors and administrators have the role of paying funeral costs and debts and distributing the deceased estate’s assets in accordance with the deceased’s will or the laws of intestacy respectively.