Deceased estates - frequently asked questions

Last updated 13 April 2010

What is a Grant of Probate or Letters of Administration?

A Grant of Probate is, in effect, a recognition by the Supreme Court that a will is a valid will and is the last will of the deceased and that the executors are those entitled to administer the estate. This Court recognition is evidenced by the Registrar of Probates placing the seal of the Supreme Court to a document, known as the probate parchment.

A Grant of Letters of Administration is obtained where there is no will, or where there is a will but no person is appointed as executor. A Grant of Letters of Administration is a recognition by the Supreme Court of a person's right to administer an estate, and is in the form of a document sealed by the Supreme Court, similar to a Grant of Probate.

When is a grant required?

A Grant of either Probate or Letters of Administration is always required where a deceased person owned land. The Land Titles Office will not allow land to be transferred, or otherwise dealt with until they have evidence a Grant has been obtained.

Where the deceased held other assets of value, such as money in bank accounts, shares or other investments, banks and other organisations are likely to require production of a Grant before they permit the transfer of any asset. Each organisation has its own policy of when it requires a Grant. For example some banks require the production of a Grant where they hold $15,000 or more. For other banks, the threshold is greater, such as $30,000 or $50,000.

Where the total value of an estate is under the organisation's threshold, they will release funds to an executor or administrator after its requirements have been met. Those requirements are usually proof of death, proof of the will (if there is one) and an indemnity from the claimant. The indemnity is required so the organisation can recover any loss it suffers from the executor if it later discovers it released the asset to the wrong person. An indemnity is not required when a Grant of Probate / Letters of Administration is produced.

What if funds are needed urgently?

Banks and other organisations are obliged to release enough funds from a deceased's estate to pay the funeral costs. A bank, for instance, will either pay the funeral home directly once it receives the original invoice, or will reimburse the person who paid the funeral invoice from the deceased's funds.

Banks and other organisations may release part or all of the funds they hold immediately if they are satisfied a beneficiary of the estate such as a spouse or child will suffer significant hardship. A release of funds urgently to a beneficiary is not an automatic right, and is at the discretion of the bank or organisation which holds the asset for the deceased.

Is proof of death required?

Generally proof of death is required to obtain a Grant of Probate / Letters of Administration. The proof required is a death certificate from the Registrar of Births, Deaths and Marriages (or an equivalent register). In ordinary cases a death certificate issues in about three weeks. However, where a Coroner's inquiry is taking place, a death certificate may not be issued for many months.

During an emergency or a disaster where there are a large number of deaths the process may take even longer. To avoid significant delays in obtaining a Grant, the Registrar of Probates will usually accept a certificate from the Coroner's office as proof of death as an interim measure, however the Registrar will require evidence of the full death certificate when it is eventually issued. The Registrar will require further information if there are any differences between the Coroner's certificate and the death certificate.

Where there are difficulties with identification of a deceased person, however, it is unlikely the Coroner will provide a certificate until identification has been established. This will cause delays in administering a deceased estate.

What if death cannot be proved?

In some instances a person's death will not be able to be proved, in which case a person may be considered as missing, although presumed dead.

A Grant of Probate / Letters of Administration can issue without actual death being established, and can be made on the presumption of death. The person who is claiming that someone has died must establish to the Court's satisfaction that this person is likely to be dead.

The law generally requires a person to be missing for seven years without being heard of before the Court will declare that person is presumed to be dead. Where the circumstances show that in all probability death has occurred, the Court is able to infer death without waiting for the seven year period.

Unfortunately it is known that some people take the opportunity of a disaster to disappear and begin a new life elsewhere. It is expected the Court would take each claim on a case-by-case basis when making a decision about the presumption of death.

Where a Grant of Probate / Letters of Administration is issued on the presumption of death, the estate assets cannot be distributed without the leave of the Court.

What happens when it cannot be proved who died first?

There may be some instances where it needs to be established who died first, for example to determine the order of wills, or ownership of assets. Where it cannot be established who died first, the common law provides the oldest person by age is presumed to have died first.

Must a beneficiary survive the deceased by 30 days?

The Wills Act provides beneficiaries must survive the deceased by 30 days before they become entitled to a gift under the will. If beneficiaries die within that 30 day period they are treated as if they have died before the deceased. This provision, however, does not apply if the will shows a different intention.

Despite the rule regarding the 30 days, an executor can make a distribution of assets, such as money, to the spouse, partner or child of a deceased within that 30 day period. The distribution needs to be made by the executor in good faith, and for the purpose of providing maintenance, support or education to the beneficiary. If the beneficiary dies within the 30 day period, the distribution is treated as an expense of the estate.

What happens if the will is missing?

If there is a copy of the will available, a Grant can be obtained of the copy of the will. The executor's affidavit accompanying the application for the Grant must address:

• the circumstances under which the will disappeared
• the efforts made to find the will such as enquiries of banks and solicitors, and publishing of advertisements
• evidence that the will-maker did not revoke the will.

Affidavits are also usually required of witnesses to the will. Where the witnesses cannot be located then other evidence will be needed to corroborate the valid signing of the will (or to establish the document to be an informal will).

Where there is no copy of the will available, it is possible to obtain a Grant on a ’re-constructed‘ missing will. In addition to the evidence listed above for a copy will, evidence of the content of the original will would be needed. This evidence would need to be independently corroborated.

What happens if there is no will?

A common perception in the community is that where there is no will the assets of the deceased go to the government. This is not the case.

The law provides a default position known as the law of intestacy which provides a formula for the division of assets between next-of-kin, such as spouse/partner and children. Next-of-kin can also include parents, grandparents, siblings, aunts and uncles and cousins. The law of intestacy provides an order of priority amongst the surviving next-of-kin to determine who benefits. Only if there are no next-of-kin do the assets go to the government.

The person most entitled to a deceased's assets under the law of intestacy is the person who is entitled to apply for Letters of Administration.

What about superannuation?

The superannuation entitlements of a deceased person do not always form part of the deceased's estate and so can often be applied for without the need for a Grant of Probate / Letters of Administration. Superannuation funds have differing rules regarding the payment of entitlements so the best step to take is to write to the fund who will provide claim forms, advise who could potentially make a claim (such as spouse/partner, children, financial dependants), and advise of their requirements.

Can a Power of Attorney still be used?

Enduring Powers of Attorney (and all other powers of attorney) end on the death of the person who gave the power. Any person who was appointed under a power of attorney cannot use that power to access the deceased's assets. The executor of the will or persons appointed under Letters of Administration are the ones entitled to access a deceased person's assets.

Do I need legal advice?

While there are do-it-yourself probate kits available, it is recommended that you seek legal advice and assistance in the administration of a deceased estate. If applications for Grants are not initiated correctly, added complications, delays and expense can occur, which in turn can cause distress and anxiety to all involved.