Grant of Probate vs Letters of Administration

A grant of probate is for an executor named in a valid will. Letters of administration apply when there is no will. Where there is a will but no executor can act, a beneficiary applies for letters of administration with the will annexed. Once appointed, executors and administrators have largely the same duties.

On this page

• Introduction
• Difference Between Grant of Probate vs Letters of Administration
• When Is a Grant of Probate Used?
• When Are Letters of Administration Used?
• Who Can Apply for Probate and Letters of Administration?
• What Happens When There Is a Will, but No Executor Can Act?
  • Unwilling Executor
  • Uncooperative Executor
  • Missing Will
• How the Executor and Administrator Roles Differ
• Are the Powers of an Executor and Administrator the Same?
• Which Grant Is Needed to Deal with the Deceased’s Assets?
• Choose the Right Grant

Introduction

Families dealing with a death often hear the terms probate and letters of administration used as if they mean the same thing. They are two different grants issued by the Supreme Court of NSW, and applying for the wrong one leads to requisitions, delay, and extra cost. Which one you need depends on two questions:

1. is there a valid will, and
2. is there an executor willing and able to act?

This guide sets out the grant of probate vs administration question in plain terms, so you can work out which process applies to you and what your role will involve.

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Difference Between Grant of Probate vs Letters of Administration

Both grants give a person legal authority to manage a deceased estate. Banks, share registries, and Land Registry Services rely on them before releasing or transferring assets. The difference lies in why the grant is made and who receives it.

The assessment times reflect the Supreme Court’s published processing times for the week of 21 September 2026. All three grants are applied for using the same summons, UCPR Form 111, and attract the same filing fee scale based on the gross value of the estate.

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When Is a Grant of Probate Used?

A grant of probate is used when the deceased left a valid will that names an executor, and that executor is willing and able to apply. The Court confirms the will is valid and that the executor has authority to administer the estate according to its terms.

The Supreme Court is clear that an executor should apply for probate. An executor who applies for letters of administration with the will annexed instead is using the wrong grant. Uncontested probate applications are decided by a Registrar in chambers, and you are notified by email when the grant is made. The Supreme Court’s probate fact sheet sets out the documents required.

Some wills name a first-choice executor and a substitute, who acts only in certain conditions. The first choice is called the instituted executor, and the alternative is the substitute executor. If a substitute applies, the wording of the will must allow it. For example, a substitute appointed only if the instituted executor dies first cannot apply while the instituted executor is alive and simply unwilling.

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When Are Letters of Administration Used?

Letters of administration are used when there is no valid will. The deceased is said to have died intestate, and the estate is distributed under the intestacy rules in Chapter 4 of the Succession Act 2006. Those rules give priority to a spouse or de facto partner (Part 4.2), then children (Section 127), and then parents (Section 128), brothers and sisters (Section 129), grandparents (Section 130), and aunts and uncles (Section 131) in that fixed order.

Before assuming there is no will, check whether an unsigned or improperly witnessed document exists. The Court can admit a document as an informal will under Section 8 of the Succession Act 2006 if it is satisfied the deceased intended it to operate as their will. If that happens, the application changes from letters of administration to probate or letters of administration with the will annexed.

Our guide on how probate without a will works in NSW explains the intestacy rules and who inherits in more detail.

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Who Can Apply for Probate and Letters of Administration?

Probate. Only an executor named in the will can apply for probate. If there are several executors, they can apply together.

Letters of administration with the will annexed. Where there is a will but no executor available, a beneficiary under the will can apply. If other beneficiaries are not applying, an administration bond with two sureties may be required to protect their shares. The Court can dispense with the bond if those beneficiaries consent in writing and the consent includes a request to dispense with it.

Letters of administration. Where there is no will, generally only a person entitled to a share of the estate under the intestacy rules can apply. The most common applicant is the surviving spouse or de facto partner. A de facto partner qualifies if the relationship was

• registered under the Relationships Register Act 2010,
• had lasted continuously for two years, or
• had produced a child.

If several people share an entitlement, such as adult children, they can apply jointly or one can apply with the consent of the others. A relative who is not personally entitled cannot apply on behalf of someone who is. The Court can make a limited grant to the attorney of an entitled person who lives outside NSW, or to the guardian of an entitled child under 18. The Supreme Court’s letters of administration fact sheet sets out the full order of entitlement.

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What Happens When There Is a Will, but No Executor Can Act?

A valid will does not guarantee a grant of probate. If the will names no executor, or the sole executor has

• died,
• lost capacity, or
• does not want to act,

… probate cannot be granted. The correct application is for letters of administration with the will annexed.

Unwilling Executor

An executor who does not want to act can renounce probate using UCPR Form 123. Renunciation must happen before a grant is made. Once probate is granted, the executor cannot renounce, although they can delegate their duties to the NSW Trustee and Guardian or a trustee company under Section 75A of the Probate and Administration Act 1898.

Uncooperative Executor

If a co-executor will not apply and will not renounce, the other executors can serve a notice requiring them to act under Part 78 Rule 55 of the Supreme Court Rules 1970. If the executor does not respond, the remaining executors can proceed without them. Legal Aid NSW explains the options when an executor is unwilling or unable to act.

Missing Will

A missing original will creates a similar problem. Letters of administration with a copy of the will annexed is a limited grant. It lasts until the original is found, at which point an application must be made in relation to the original will. If the people entitled under intestacy differ from the beneficiaries under the copy, the Court requires their consent or proof they were served with notice.

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How the Executor and Administrator Roles Differ

The most important difference is where each person’s authority comes from.

• An executor is chosen by the deceased and named in the will.
• An administrator is appointed by the Court, because the deceased either left no will or left no executor who could act.

Administrators may need an administration bond where other beneficiaries have not consented, or where a beneficiary is under 18 or lacks capacity. Administrators also bear the burden of proving their entitlement, which can require evidence of the family tree or the length of a de facto relationship.

From my family law practice, I know how often the start or end date of a relationship is disputed. In an intestate estate, that same question can decide whether someone is entitled to apply at all, and whether they inherit.

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Are the Powers of an Executor and Administrator the Same?

Once a grant is made, the duties are largely the same. Both are responsible for

• collecting the deceased’s assets,
• paying the debts, and
• distributing what remains.

The main difference is the rulebook for distribution.

• An executor, and an administrator with the will annexed, must follow the will.
• An administrator of an intestate estate must follow the intestacy rules in Chapter 4 of the Succession Act 2006, even where the family believes the deceased wanted something different.

Both receive the same statutory protection when distributing. Section 93 of the Succession Act 2006 protects a legal personal representative from personal liability to a family provision claimant. The protection applies if they distribute at least six months after death, after publishing a notice of intended distribution with a period of at least 30 days, and with no notice of a claim. Both can also apply to the Court to have their accounts passed and to claim commission.

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Which Grant Is Needed to Deal with the Deceased’s Assets?

Not every estate needs a grant. The Supreme Court confirms there is no statutory requirement to obtain one in every case. Whether you need one depends on how the assets were held:

• Real estate in the deceased’s sole name or held as tenants in common, requires a grant.
• Real estate held as joint tenants passes automatically to the surviving owner. You update the title with NSW Land Registry Services.
• Bank accounts and other modest assets may be released without a grant if the asset holder accepts the death certificate and a signed declaration or indemnity.
• Superannuation and life insurance often lie outside the estate, although some trustees still ask for a grant first.
• Assets in another state or country may need a reseal of the NSW grant, or a separate grant, in that place.

The Court will not make any grant if there are no assets in NSW to administer. If a grant is needed, the type follows the two questions at the start of this guide. A valid will with a willing executor needs probate. A will without an available executor needs letters of administration with the will annexed. No will at all needs letters of administration.

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Choose the Right Grant

Applying for the wrong grant is one of the most avoidable causes of probate delay. It triggers requisitions and sends the application back into the Court’s queue. Letters of administration already take roughly four times longer to assess than probate, so an error there is especially costly.

Buckley Lawyers confirms which grant applies before any document is prepared. We then handle the application, the consents or bond, and the administration through to final distribution. For more detail, see our grant of probate page, our guide on how much a grant of probate costs in NSW, or whether you need a lawyer for probate.

Contact us today to schedule a consultation.

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