Probate and Letters of Administration (Grants of Representation)

Estate administration is the process of a deceased person’s estate being collected and distributed in accordance with the deceased’s wishes, or the law. The estate administration process sometimes requires a grant of probate or a grant of letter of administration which are legal documents used to verify the authority of the person administering the estate.

If you need to obtain a grant of probate or a grant of letter of administration in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

What is Probate?

Probate

If you are appointed as an executor by a person who has died leaving a Will, you may be required to obtain a grant of probate from the Supreme Court of the Northern Territory to administer the person’s estate. A grant of probate verifies the Will and the authority of the executor to deal with the estate of the deceased.

Letters of Administration

Instead of a grant of probate, where a person has died without a Will, or with a Will that does not have a valid executor appointment, the person wanting to deal with the estate of the deceased is required to obtain a grant of letters of administration from the Supreme Court of the Northern Territory. A person who obtains a grant of letters of administration is referred to as an “administrator”.

Who is Entitled to Apply for a Grant of Probate?

There are laws which dictate who is entitled to administer a deceased person’s estate and which regulate their conduct.

The correct term for a person who is appointed to administer a deceased person’s estate is “executor” or “administrator”, depending upon the circumstances of their appointment. The term “personal representative” can mean either an executor or an administrator.

If you are appointed as an executor by a person who has died leaving a Will, you are the person with first priority to apply for a grant of probate. Where you are appointed as an executor you may be required to obtain a grant of probate from the Supreme Court of the Northern Territory to administer the person’s estate. A grant of probate verifies the authority of the executor to deal with the estate of the deceased.

Pursuant to section 22 of the Administration and Probate Act 1969 (NT), the Court may grant administration of the estate of an intestate person to:

(a) the spouse or de facto partner of the deceased person;

(b) one or more of the next of kin;

(c) the spouse or de facto partner conjointly with one or more of the next of kin; or

(d) such person, whether a creditor or not of the deceased person, as the Court thinks fit.

If you need to obtain a grant of probate or a grant of letter of administration in the northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

When is a Grant of Probate Required?

The requirement to obtain a grant of probate or a grant of letters of administration is determined by the nature of the assets of the deceased’s estate. For example, if the deceased has a minimal estate probate may not be required. In the Northern Territory, if an estate is less than $20,000 in value, no grant of representation is required for you to take control of an estate. The requirement for probate is also determined by which entities hold the assets of the deceased and what they require to release the asset to the executor. For example, most banks require a grant of probate if the asset they hold exceeds a certain value.

If you need to obtain a grant of probate or a grant of letter of administration in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

What are the Rights and Duties of an Administrator?

The executor or administrator of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the deceased’s Will or the rules of intestacy where the deceased did not leave a Will.

The duties of executors can be summarised as follows:

• To take custody and see to the disposal of the deceased’s body;
• To collect the assets of the estate;
• To realise the assets of the estate;
• To pay the testamentary expenses and liabilities of the estate;
• To administer the estate in accordance with the Will;
• To keep proper accounts; and
• To carry on or defend against causes of action in respect of the estate (please note that the survival of contractual rights allows executors to enforce or be sued on contracts entered into by the deceased during their lifetime).

Executors have a fiduciary duty to the beneficiaries of the estate and must discharge their duties in the best interests of the beneficiaries.

An executor’s role is largely gratuitous, meaning that they are expected to carry out their duties without seeking remuneration from the estate. In many cases, an executor is also a beneficiary of the estate and therefore they will already receive a benefit. However, pursuant to section 102 of the Administration and Probate Act 1969 (NT), the Supreme Court can grant a commission from a deceased estate but not exceeding 5% of the total value of the estate. This 5% commission is in addition to any reasonable expenses that the executor has incurred during their executorship, which are recoverable from the estate under Northern Territory law. The 5% commission is granted for the executor’s “pain and trouble” in administering the estate, as is just and reasonable.

It is for the court to determine a just and reasonable rate of commission up to 5%. The court makes an assessment of the appropriate commission based on the following factors:

• The size of of the estate;
• The degree of “pains and trouble” experienced by the executor while administering the estate;
• Whether the executor received assistance from solicitors, accountants and other professional advisors;
• The skill, responsibility and care demonstrated by the executor in undertaking the role;
• The length of time spent by the executor in performing their duties for the estate; and
• The executor’s success in administering the estate.

Executor’s commission is only payable upon the executor passing his or her accounts to the court. In their role, an executor maintains accounts showing all the money they have collected and paid out on behalf of the estate. Under section 89 of the Administration and Probate Act 1969 (NT) and also the Supreme Court Rules 1987, there are specific circumstances, such as when an executor applies for a commission, when the executor must file estate accounts with the court. Lists of the deceased's assets, the payment of legal fees, the division of the estate, and the payment of burial costs and the deceased's obligations are all documented in estate accounts. The executor typically files accounts within the first year following the testator’s death. The Registrar examines the accounts to ensure that they match the executor's claimed management of the estate and the requirements of the Will and applicable laws. If an executor fails to turn in accounts without the court's special approval, they will not be compensated.

The beneficiaries must be informed by an executor of their intention to apply for an executor’s commission. Once informed of this intention, the beneficiaries can then privately agree that the executor is entitled to a commission without the matter proceeding to a court hearing. This is a more cost-effective approach and a timelier method of dealing with a claim for commission.

An executor’s commission compensates the personal representative for their effort, time and trouble taken when administering the estate. If you need assistance in administering an estate in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Who can Apply for a Grant of Administration?

There are laws which dictate who is entitled to administer a deceased person’s estate and which regulate their conduct.

The correct term for a person who is appointed to administer a deceased person’s estate is “executor” or “administrator”, depending upon the circumstances of their appointment. The term “personal representative” can mean either an executor or an administrator.

Instead of a grant of probate, where a person has died without a Will, or with a Will that does not have a valid executor appointment, the person wanting to deal with the estate of the deceased is required to obtain a grant of letters of administration from the Supreme Court of the Northern Territoryt. A person who obtains a grant of letters of administration is referred to as an “administrator”. A grant of letters of administration verifies the authority of the executor to deal with the estate of the deceased.

A person named as an executor in a Will is the person with priority to apply for a grant of probate. Where the person named as the executor is unwilling or unable to make an application for a grant of probate, an alternative person may make an application for a grant of letters of administration.

Where there is no Will left by the deceased there are certain categories of people who are entitled to make an application to administer the estate. In circumstances where there is no Will left by the deceased, a person who administers the estate may be required to apply for a grant of letters of administration.

If you need to obtain a grant of probate or a grant of letter of administration in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

How to Apply for a Grant of Representation

The steps in applying for a grant of Probate are generally as follows:

1. Advertise
2. Publish your intention to apply for a grant of representation on the Supreme Court website by filing the appropriate notice by email to ProbateOfficer.NT@nt.gov.au.Searches

Conduct a search of the index of wills by sending an email to agd.publictrustee@nt.gov.au and asking the Office of the Public Trustee of the Northern Territory to undertake a search in the name of the deceased for the purpose of applying for a grant of representation.

Conduct a search of the records of the Supreme Court by sending an email to ProbateOfficer.NT@nt.gov.au and asking the Probate Officer to undertake a search in the name of the deceased for the purpose of applying for a grant of representation.

3. Allow time to object

A Notice of Intended Application for Probate must be published on the Supreme Court website for 14 days before an application for Probate can be filed. Wait for 14 days after your Notice appears on the Supreme court of the Northern Territory website to enable people to object to your application. You can file your application on the 15th day.

4. Prepare the documents

Complete the appropriate affidavits and forms to apply for a grant of representation, including having them signed in front of an authorised witness, and file those by email to ProbateOfficer.NT@nt.gov.au. The documents required will depend on the type of grant you are seeking, as well as other factors, such as how many executors are named in the Will.

5. File the documents at the Supreme Court

You must file your application with the Court by email. The Supreme Court has registries in Darwin and Alice Springs. You must pay the filing fee when filing.

It is important to ensure that the spelling of persons’ names is correct in all application forms. If there is an error in the application or not enough information provided for a Grant to be made, the Court will issue you with a requisition which sets out what further information or documents are required for the Grant to be made.

If you are unsure about how to make your probate application, please contact Armstrong Legal on 1300 038 223 as we can assist you.

When is a Grant of Letters of Administration Required?

The requirement to obtain a grant of probate or a grant of letters of administration is determined by the nature of the assets of the deceased’s estate. For example, if the deceased has anestate of less than $20,000, probate may not be required. The requirement for probate is also determined by which entities hold the assets of the deceased and what they require to release the asset to the executor. For example, most banks require a grant of probate if the asset they hold exceeds a certain value.

If you need to obtain a grant of probate or a grant of letter of administration in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Timeframe to Apply for a Grant of Administration

It can take a number of months from the time of the deceased’s passing before you have the grant of probate or the grant of letters of administration.

The steps you are required to follow in order to apply for a grant of probate or a grant of letters of administration require you to comply with a certain timeframes. For example, when applying for a grant of probate or a grant of letters of administration you are required to place an advertisement on the Supreme Court of the Northern Territory’s wesbite. It is also a requirement that once your advertisement has been published you wait 14 days before making an application for a grant of probate or a grant of letters of administration.

After complying with all of the steps required you can then file the application for a grant of probate or grant of letters of administration in the court registry. After the application has been filed in the court registry the capacity of the registry to process the application determines the time it takes to obtain the grant of probate or the grant of letters of administration. It can take anywhere from 6-10 weeks to have the grant of probate or the grant of letters of administration issued by the court registry. It may take longer if the courts are particularly busy. It is also important to check that you will not be prevented from filing your application for a grant of probate or a grant of letters of administration by closure of the registry during court holidays.

Although it may take some time to obtain a grant of probate or a grant of letters of administration, it is important to know that the funeral expense can be paid from the estate funds before a grant has been obtained.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Costs Associated with Obtaining a Grant of Representation

The costs associated with obtaining a grant of probate or letters of administration include the following:

• Fee required to be paid to the Registry of Births, Deaths and Marriages in order to obtain the death certificate;
• Advertising fee required to be paid to advertise the notice of intention to apply for a grant of probate;
• Court filing fee paid to the court registry at the time of filing the application for the grant of probate; and
• Any legal advice obtaining to assist with the application for a grant of probate.

If you need to obtain a grant of probate in Queensland, we invite you to contact us for an obligation free case assessment on 11300 038 223.

Revocation of a Grant

Where a grant is made in error or improperly obtained, certain eligible people may seek to have the grant revoked.

A grant may also be revoked in the event it becomes ineffectual, for example in the following circumstances:

• the executor lacks capacity to continue to perform their duties in administering the estate;
• there has been misconduct or gross delay by the executor;
• there is ineffective cooperation between joint executors.

In the event any of the above circumstances arise, the categories of people eligible to seek revocation of the grant are as follow:

• a person entitled on intestacy;
• beneficiaries named in the Will that was admitted to probate;
• beneficiaries named in a previous Will; and
• the executor named in the Will.

If you need advice about revoking a grant of probate or a grant of letter of administration in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.

The Role of the Executor

If a person is appointed as executor or administrator of the estate and accepts that appointment, they have a duty to administer the estate in accordance with the Will (or intestacy rules, if applicable) and distribute the estate to the beneficiaries. The following is a list of tasks which the executor usually must perform in administering an estate:

Funeral arrangements

• One of the first duties of the executor may be to make funeral arrangements for the deceased person. Any funeral costs incurred by the executor or other family member are reimbursed from the estate of the deceased person.

Death certificate

• The executor will require a copy of the death certificate in many of their dealings with other organisations, such as banks. The executor will also require a copy of the death certificate to apply to the court for a grant of probate or letters of administration. If there is not a copy of the death certificate supplied by the funeral home or family, the executor will be required to apply to the Registry of Births Deaths and Marriages to obtain a copy of the death certificate.

Notification of death

• The executor has to contact all relevant organisations with which the deceased had dealings and notify them of the death.This usually requires providing a certified copy of the death certificate. Different organisations have different requirements to release information or assets to the executor. The executor also has to ascertain what each organisation requires to release the information or asset to the executor to be dealt with as part of the estate. For example, many financial institutions will require a copy of the grant of probate or letters of administration to release accounts or investments over a certain amount in value.
• The following are some examples of organisations who must be notified when a person dies:
• Banks;
• Insurance companies;
• Employer;
• Government departments such as Centrelink, Medicare, Department of Transport and Department of Veterans Affairs;
• In home care providers and other domestic service providers;
• Foreign embassy if the deceased received of a foreign pension; and
• Libraries or other clubs or associations with which the deceased was a member.

Identify assets and liabilities

• The executor will need to determine the nature of ownership of the assets of the deceased person, such as whether the assets were owned jointly or solely. The executor also needs to identify and pay the liabilities of the estate.

Secure assets

• An executor is required to secure all assets of the estate against loss or damage. For example, ensuring real estate is appropriately secured and the executor is in possession of all keys. The executor also needs to insure assets or maintain the existing insurance on assets. The executor has an obligation to protect the estate from loss which may involve selling high risk assets such as motor vehicles as soon as possible.
• Some points to consider are as follows:
• Consider selling real property;
• Make a claim for the deceased’s superannuation (if any) to be paid to the executor on behalf of the deceased’s estate;
• Set up an estate bank account to receive proceeds of the deceased’s bank accounts and the proceeds of sale of estate assets;
• Pay any debts or liabilities from estate funds (note: the executor should keep tax invoices, receipts and other proof of payment of these debts or liabilities); and
• See an accountant for advice about lodging final income tax returns and the taxation implications of selling any estate assets.

Investments

Where appropriate, it is the executor’s duty to invest the assets of the estate in suitable investments. The executor must act with reasonable care and diligence when making or managing investments. The executor’s overarching duty is to preserve the assets of the estate and, accordingly, a cautious approach should be taken to investments. Distribution

• It is the duty of the executor to distribute the estate in accordance with the Will, or in accordance with the rules of intestacy where there is no Will. No distributions should be made from the estate until12 months from date that the grant of representation is made in case there are claims against the estate. If a claim is made against the estate, for example, when the Will is challenged or contested, then the executor cannot distribute the estate until the claim is resolved.

If you need assistance with the administration of an estate in the Northern Territory, we invite you to contact us for an obligation free case assessment on 1300 038 223.