Grant of Probate vs. Letters of Administration in QLD: Key Differences

When a person dies in Queensland, the estate often requires a court-issued document authorising the handling of their assets, paying debts, and distributing the remainder. Two primary routes exist:

  1. Grant of Probate: Issued if there is a valid will and a named executor.
  2. Letters of Administration: Issued if there is no valid will, or if the executor (or executors) cannot act, or certain parts of the will are deemed invalid.

But how do these two processes differ, and which applies to your situation? This article explores probate and letters of administration in Queensland, outlining key distinctions, eligibility, procedures, and practical tips for executors or administrators.


Why Understanding the Difference Matters

If you’re a spouse, child, or potential executor, confusion often arises:

  • Is there a valid will?
  • Who is named executor?
  • What if no executor is named or they’ve died/unwilling to serve?

“Determining whether you need a Grant of Probate or Letters of Administration sets the entire estate administration’s direction—wrongly applying could waste months.”

Overview of Queensland Legal Framework

In Queensland, estate administration largely follows the **Succession Act 1981 (Qld)**¹ and related court rules. If a will is valid and an executor is named (and willing), they typically apply for probate. Otherwise, someone with a primary interest in the estate (often a spouse or child) applies for Letters of Administration². Both routes lead to a Supreme Court document that grants the applicant formal authority over the deceased’s assets.


Understanding Grants of Probate

Definition

A Grant of Probate is a Supreme Court order confirming:

  1. The will is the last valid testament of the deceased.
  2. The executor named in the will holds the legal power to collect assets, pay debts, and distribute the estate.

Many institutions—like banks, share registries, or the Titles Registry—refuse to release the deceased’s accounts or property transfers unless the executor produces the sealed Grant of Probate³.

Eligibility and Requirements

To obtain probate in Queensland, the executor must:

  • Locate the original signed will,
  • Advertise an intent to apply for probate (e.g., in a local publication),
  • File affidavits explaining the circumstances of the will’s signing (if needed),
  • Show no major grounds for objection (like a caveat or suspicious capacity concerns).

If the court is satisfied, it issues probate, typically taking 4–8 weeks from filing if uncontested.

“Probate cements the will’s authority—no further proof is needed for institutions to act on the executor’s instructions.”


Understanding Letters of Administration

When Are Letters of Administration Necessary?

Letters of Administration apply if:

  • There is no valid will (intestacy).
  • The will exists but no executor is named or able to serve (e.g., deceased executor, renunciation, or a will partially invalid).
  • A valid will doesn’t fully dispose of all assets (partial intestacy), requiring administration for the rest.

In such cases, an administrator steps in, akin to an executor, but appointed by the Supreme Court to manage the estate distribution under intestacy rules or partial will instructions.

Eligibility and Priority

If intestate (no will), the spouse or a major beneficiary usually has the highest priority to apply. If they decline or are ineligible, next-of-kin or even creditors may step forward to become the administrator. The court checks:

  • The applicant’s relationship to the deceased,
  • The estate’s complexity,
  • Potential conflicts.

“A spouse typically ranks first in line to apply for Letters of Administration when there’s no will, ensuring estate management aligns with the family’s best interests.”


Table: Key Differences Between Probate and Letters of Administration

AspectGrant of ProbateLetters of Administration
PrerequisiteExistence of a valid will + named executorNo valid will, or executor can’t/won’t act, or partial intestacy
ApplicantNamed executor in the willSpouse, next-of-kin, or major beneficiary (or creditor if no one else)
Court ConfirmationConfirms will’s validity + executor’s authorityAppoints an administrator to distribute under intestacy (or partial will)
Distribution RulesFollows the will’s instructionsFollows intestacy formula or partial instructions in a partial will
Key DocumentsOriginal will, executor’s affidavit, notice of intent to applyAffidavit verifying no will or the executor’s ineligibility, death certificate
Common Timeframe4–8 weeks if uncontested4–8 weeks, but can be more if multiple claimants or disputes

(Note: Both are filed with the Supreme Court of Queensland, but each grant addresses a distinct legal scenario.)


Choosing the Right Approach: Which Grant Applies?

  1. Check for a Will: If you find an original will, see if it’s valid (witnessed, no major defects) and if an executor is named.
  2. Executor’s Ability: If the named executor is alive, willing, and able to act, probate is likely the route.
  3. Intestacy: If no will (or it’s invalid) = Letters of Administration.
  4. Partial Intestacy: If the will fails to dispose of some assets or has an invalid portion, that part might require Letters of Administration “with the will annexed,” clarifying how leftover assets are distributed.

“Confirming which path is correct ensures the Supreme Court grants the right authority—either confirming the will or appointing a new administrator.”


Practical Examples

  1. Scenario 1: Linda dies leaving a valid will naming her son as executor. The will disposes of all assets. The son applies for Probate.
  2. Scenario 2: John dies with no will and a spouse plus children from a prior marriage. The spouse has top priority to apply for Letters of Administration under Queensland’s intestacy rules.
  3. Scenario 3: Maria’s will is partially invalid—some assets are left unmentioned. The executor obtains Probate for the valid portion, and Letters of Administration with the Will Annexed for the rest.

“When you see partial or no instructions in the will, the court can incorporate both a recognized portion of the will plus an administration component for leftover assets.”


Frequently Asked Questions (FAQ)

Q1: What if there’s a valid will, but no executor named?
A: That scenario usually leads to Letters of Administration with the Will Annexed, since no one is formally designated as executor in the text.

Q2: Can multiple people apply for Letters of Administration?
A: Yes. If multiple next-of-kin want authority, they may either apply jointly or the court decides who is best suited. Large disputes might require a hearing¹.

Q3: Does having Letters of Administration or Probate drastically change how we distribute the estate?
A: Generally, yes. Probate = distribution under the will. Letters of Administration = distribution under intestacy rules (or partial instructions if partial intestacy). The process of paying debts, collecting assets, is similar though.

Q4: Must I advertise “Intent to Apply” for Letters of Administration just like probate?
A: Yes. The same notice requirements typically apply, giving any interested party time to object or lodge a caveat².

Q5: Is obtaining Letters of Administration more time-consuming than probate?
A: It can be, especially if multiple relatives step forward or if the estate is big and complex. But both processes are quite similar in time—4–8 weeks if uncontested, though more if disputes arise.


Grants of Probate and Letters of Administration in Queensland serve similar functions—to legally empower someone to handle a deceased’s estate—but arise in fundamentally different scenarios. Probate confirms the will and the executor named within it, while Letters of Administration come into play if no valid will exists or the existing will fails to nominate an executor.

An executor or prospective administrator should:

  1. Locate any valid will,
  2. Confirm if the named executor can act,
  3. File the correct application (probate vs. administration) in the Supreme Court,
  4. Distribute the estate accordingly (according to the will or intestacy rules).

“Both grants achieve one core goal: giving legal authority over the estate so debts can be settled, taxes paid, and the rightful beneficiaries receive their shares.”

Key Takeaways:

  • Grant of Probate: For a valid will with a named executor.
  • Letters of Administration: No valid will, or executor cannot serve. Distributes assets via intestacy or partial instructions.
  • Court Process: Both require application in the Supreme Court of QLD with notice periods.
  • Distribution Differences: Probate follows the will; administration uses intestacy (or partial instructions).
  • Similar Timeframes: Around 4–8 weeks if uncontested, potentially longer if disputes arise.

By understanding which route applies and why, families can avoid confusion and promptly administer the deceased’s estate in Queensland—whether guided by a will or the statutory rules of intestacy.

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Last updated: 29 January 2025

Disclaimer: This information is designed for general information. It does not constitute legal advice. We strongly recommend you seek legal advice in regards to your specific situation. For expert advice call 1300 580 413 or contact us to arrange free initial advice.

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