Generally speaking, obtaining a grant of representation (for example, a grant of probate) is the process by which the Supreme Court of Queensland officially recognises the will of the deceased as the last legally valid will, or in some cases where there is no will, recognises the administrator as the person entitled to deal with an intestate estate. The grant issued, is a Supreme Court document that recognises the personal representative’s authority to deal with the estate of a deceased person.

There are a variety of grants of representation. However, the main forms of a grant of representation are:

  1.  grant of probate;
  2.  grant of letters of administration with the will; and
  3.  grant of letters of administration on intestacy.

Grant of probate

A grant of probate is a form of grant where a valid will exists and the executor named in the will is applying for a grant.

Grant of letters of administration with the will

This form of grant occurs where there is a valid will but a person other than the executor named in the will is applying for a grant. For example, this may occur where the appointed executor has died or lost capacity or is otherwise unable to act. The person to whom the grant is issued is referred to as the administrator.

The Court has a priority list of persons to whom the Court may grant letters of administration with the will.

Grant of letters of administration on intestacy

A grant of letters of administration on intestacy arises where no valid will exists and an authorised person is applying to be appointed as an administrator for the purpose of attending to the estate’s administration.

In situations where a person dies intestate, the estate will be administered according to the intestacy rules.

As with a grant of letters of administration with the will, there is an order of priority of persons to whom the Court generally grants letters of administration on intestacy.

When is it required? 

A grant is required to establish the authority of the execution or administration to deal with third parties to enable the persons to take/ collect/ assume physical control of the estate’s assets (e.g. where funds held in certain financial institutions are over the threshold for which funds will be released without a grant).

Why is it recommended? 

Even when a grant of representation is not required by a third party to deal with estate assets, it is prudent for an executor/administrator to obtain a grant as, in most cases, it can protect the others relying on the grant and affords a personal representative the protection of section 53(4) of the Succession Act 1981 (Qld), which states:

“A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.”

At de Groots wills and estate lawyers, we have a team of experienced professionals who are able to assist you with your wills and estate planning needs. If you have any questions about your estate plans, please do not hesitate to contact our team on (07) 3221 9744. For more information about our services or to get started online, visit our website.