Probate and letters of administration

The role of an executor or administrator of a deceased estate is an important one, with many obligations, duties and responsibilities.

As an executor or administrator, it is essential for you to ensure that the estate is administered correctly in accordance with the law, otherwise you may be personally liable for any claims, loss or damage.

Aitken Partners are able to provide expert assistance in this area every step of the way, including applying for Grant of Probate/Letters of Administration, collection/investment of assets/payment of liabilities, and preparation of the final account and distribution to beneficiaries.  

What is the role of an executor/administrator?
The executor’s duties include:
  • Organising the funeral;
  • Locating the Will;
  • Ascertaining the assets and liabilities of the deceased;
  • Arranging payment of estate debts;
  • Applying for a Grant of Probate or Letters of Administration;
  • Collecting the assets of the estate and holding them on trust;
  • Arranging the sale of estate assets if necessary;
  • Arranging the estate tax returns and payment of tax;
  • Carrying on any business of the deceased;
  • Instituting or defending any legal proceedings on behalf of the estate;
  • Distributing assets to beneficiaries in accordance with the Will (or intestacy provisions if there is no Will).
Can the estate be administered straight away?
A Grant of Probate (where there is a Will) or Letters of Administration (no Will or no executor named in the Will) is usually required before the estate can be administered.
The Grant provides the authority for the executor/administrator to deal with the deceased’s assets.
Can a named executor refuse to act?
A named executor is able to renounce their role, prior to commencing any work in relation to the estate, by signing the appropriate renunciation forms, which must be witnessed by a lawyer.
If a Grant of Probate has already been obtained, the executor must apply to the Court to be discharged.
What if the original Will cannot be found?
In some circumstances, Probate of a photocopy Will may be granted, if the original cannot be found. It must be shown that the testator did not intentionally destroy the Will with the intention of revoking it.
Can informal documents be admitted to Probate?
In Victoria, a Will must be signed by the testator and two witnesses in order to be valid.
However, in some cases, Probate may be obtained in respect of informal documents which may not be professionally prepared, witnessed, or even signed by the testator.
Examples of informal documents admitted to Probate include handwritten notes, electronic documents saved on the computer and videos.
Aitken Partners are able to advise you as to whether an informal document is likely to be admitted to Probate.
What if the Will is unclear or ambiguous?
If the Will is unclear or ambiguous, an application may be made for the Court to determine the proper construction of the Will, and resolve any ambiguities. The Court may rectify the Will to give it a clearer meaning.
What if there is no Will?
If there is no Will, the estate will be divided in accordance with the intestacy laws. In this case Letters of Administration must be applied for by the person with the greatest entitlement to the estate.
What if the person entitled to apply for a Grant is a minor?
If the person who takes the largest share under an intestacy is a minor, the minor’s parent or guardian should apply for a Grant on their behalf.