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Probate And Letters Of Administration

When someone passes away, financial institutions and other entities (for example, the Land Titles Office, Aged Care homes) require a Grant of Probate or Letters of Administration before they will deal with assets owned by the deceased.

Imagine if you were a bank, and someone presented you with a Will naming them as the Executor, and a death certificate.  You take their instructions to close the deceased’s bank accounts, and pay out the money to them.  The next day, a different person comes in with a different Will for the deceased customer, naming them as the Executor, and sues you for paying the money out to the wrong person.  This is the reason most financial institutions will require the Grant before they deal with the assets.

Basically, Probate means “to prove”.  If someone dies with a valid Will, the Executor of the Will is required to submit the Will, along with a certified copy of the death certificate, and supplementary documentation, to the Supreme Court of Victoria (assuming this is the jurisdiction based on domicile and assets).  The Registrar of Probates will consider the application, and provide certification that Probate has been granted by the Court – that is, the Executor has ‘proved’ they are authorized to deal with the estate.

Where someone dies without a valid Will, this is called an intestacy.  If there are assets owned by the deceased, but no valid Will, then laws of intestacy will apply to determine who has the power to make the application to the Court, and how assets must be distributed.  This application is very similar, but not identical to, the application for a grant of Probate.  It is called a Grant of Letters of Administration.

The rules governing who inherits on intestacy are different between different States, and very different across different countries.  In some cases, there may be a discussion about which country, or state, has jurisdiction – that is, where the application for the Grant should be made.  This depends primarily on where the deceased lived, and where they owned their assets.  As many people now own assets in different states and even different countries, it is sometimes necessary to apply in more than one jurisdiction.

The lawyers at Anchorage Legal are able to provide you with guidance as to what is involved in administering an Estate, and are also experienced with preparing and lodging applications for Probate and Letters of Administration (both in the case of Intestacy and other specific circumstances – such as the case in which the Executor named in the Will is not able to bring the application).

We have also had experience with making applications for re-seal of Probate in other states, and other countries, as many of our clients have significant global assets.

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