Being appointed an executor or trustee in a will may seem an honour. After all, you’re being asked to stand In the willmaker’s shoes and dispose of their assets when he or she is unable to do so themselves. And, though it may be considered the ultimate sign of trust, it also comes with a great deal of responsibility – both moral and legal, so it’s best to know your obligations before agreeing to the task.

Letters of administration

Last updated

1 July 2020

Where there is no will, or a will is executed but does not appoint an executor, letters of administration must be obtained before the estate of the deceased may be distributed. The procedure is similar to that required for obtaining a grant of probate.

Probate and estate duties were completely abolished by 1984; therefore, no formalities are now required at either state or federal level.

Need for grant of probate or letters of administration

A grant of probate or letters of administration is required because the assets of the estate may not otherwise be collected for the benefit of the beneficiaries of the will. For example, the deceased may have had a bank account, and banks will only allow executors to have access to a deceased’s account if the executor concerned has received a grant of probate. Another practical result of receiving a grant of probate (or letters of administration) is the protection the grant gives to the beneficiaries or next of kin. Such people can assume that they are the only people who will receive the property of the deceased. If someone disputes this claim by, say, the production of another will, the only way these claimants can receive any of the estate is to apply to the Supreme Court to decide which is the last valid will.

A grant of probate or letters of administration is essential to enable the ‘personal representative’ (the executor or administrator of the estate) to obtain the title to the deceased’s property and then to collect, administer and protect it for the benefit of those interested in the estate. These may be creditors, beneficiaries or next of kin. The production of the probate is the only way the personal representative can prove title to enable the deceased’s assets to be dealt with.

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