Probate and Letters of Administration

Probate is a legal procedure where the Supreme Court certifies that:

1. A person has passed away (the deceased).
2. The deceased left a valid Will.
3. The executor(s) named in the Will have the authority to administer and finalise the deceased’s estate.

The executor(s) named in a Will apply to the Supreme Court for Probate. If the application is successful, they receive a Grant of Probate.

A Grant of Probate is a legal document issued to the executor(s) of a valid Will.
It proves the following:

1. The named person has died (the deceased).
2. The deceased left a valid Will.
3. The Executors named in the Grant of Probate have the authority to access and deal with the deceased’s Estate.

You need a Grant in the following situations:

• Seeking the refund of an Accommodation Bond (RAD) from an aged care facility.
• Transferring title of real estate that was held solely by the deceased, or as tenants in common.
• Accessing funds in a bank account over a certain value, usually $50,000.
• Dealing with a shareholding over a certain value, usually $50,000.
• Accessing superannuation that is payable to the estate.

In determining whether you need a Grant of Probate, you can:

• Contact the relevant institutions and ask whether they require a Grant in order for you to deal with the property.
• Contact Probatum for a consultation regarding the Estate.

If there are minimal assets, you may only need to produce a certified copy of the Will and death certificate.

A Letter of Administration is granted by a Court or Probate registry in the event of someone passing away without creating a Will or appointing a valid executor of their Will. It is granted to the person or people deemed appropriate to deal with the deceased person’s Estate.

Generally family members or next of kin are entitled to a share of the estate. This may be a spouse or relative.
If there is no next of kin, the NSW Trustee & Guardian or another person may be granted a Letter of Administration.

You will need to apply for a Letter of Administration through the courts.

Once a deceased’s superannuation fund has been located, it is important that anyone wishing to claim monies from a deceased’s superannuation fund lodges a superannuation death benefit claim as soon as possible. The trustee of a superannuation fund may pay the monies to a person nominated under a binding death nomination, the Estate (in which case the funds may form part of the Estate), to the person claiming the superannuation death benefit, someone who is interdependent on the deceased, or any other person who wishes to claim an entitlement to the deceased’s superannuation.

Yes. If a family member has lodged a claim for a deceased’s superannuation death benefits, there is no guarantee that the trustee of the superannuation fund will pay the money to that family member (even if they are claiming the money on behalf of all family members). The reason for this is that the trustee of the superannuation fund will look at the financial and non-financial interdependency between parties, whether there is a valid binding death benefit nomination in place, and the person’s individual circumstances.