Probate
The process of getting permission from the state Supreme Court to carry out the terms of the will. The court also confirms the it is the correct, valid will.
Grant of Probate
The executor named in the will should apply for a grant of probate. Once successful the court issues the executor with a ‘grant of probate’. This document is legal proof that the executor can manage all legal aspects of the estate
Letters of administration with the will annexed
The administrator of the estate applies for ‘letters of administration with the will annexed’. This occurs where deceased left a will that either did not name an executor, or the executor named has died or is unwilling or unable to accept the position. Letters of administration have the same function as a grant of probate.
Letters of administration
The administrator can apply for letters of administration where there was no will. The court generally appoints the senior next of kin, starting with the spouse. The deceased nor family have any input on how assets are distributed. The entire estate is gifted to the next of kin in accordance with the state’s scheme of intestacy.
Administrator
The administrator is appointed by the court as the legal representative of the deceased’s estate. The administrator is generally the senior next of kin, starting with the spouse. An administrator is required where there is not a will appointing an executor. This could be because there is either no will, or the executor/s named in the will have died or are unwilling or unable to act.
Executor
The person named in the will to manage the estate. They will have the power to move and sell assets, carry on the business of the deceased and pay any liabilities of the estate.
Testate
A person is deemed to have died ‘testate’ if they have a valid will that is approved by the court.
Intestate
A person is said to have died ‘intestate’ where they had no valid will.
Partial intestacy
Partial intestacy can occur when certain clauses in the will fail. For example, where a property is gifted to a person who has passed away, and there is no further survivorship clause. In this case the gift of the house would fail and fall into the residual of the estate.
Public Trustee
Each state and territory has an office of the public trustee. It is set up in accordance with national statute to act as a trustee. The Public trustee provides services to the general public including will making, will storage, enduring powers of attorney, financial administration for people with mental impairments and more. The public trustee can act as an executor or administrator for an deceased estate where no one else is willing or able to fulfil these roles.
Will
A legal declaration of a person’s wishes in regards to the distribution of their property, possessions and body, and may include intentions for care of dependents. It can be revoked at any time.
Codicil
An addition that explains, modifies, adds or revokes to an existing will. It must be executed with the same formalities as a will. Codicils are used to amend a will without having to re-write the entire will.
Resealing a grant
Each grant is only valid for the state where it was issued. Where the deceased had property in more than one state or overseas it is necessary for all other local jurisdictions to provide a grant. Rather than go through the grant application process, you may present your original grant to the interstate Supreme Court of foreign equivalent for approval., This process is known as resealing a grant.