Deceased Estate Administration
What is a grant of representation and do you need one?
A grant of representation is a formal document issued by the Supreme Court that confirms who has the legal authority to administer a deceased person’s estate.
Until a grant is obtained, the personal representative’s authority may be limited. Taking steps beyond preserving estate assets, or dealing with institutions without proper authority, can expose a person to personal risk. Obtaining a grant provides formal recognition and protection when administering the estate.
If there is a valid Will, the grant is called a Grant of Probate. If there is no Will, or no executor able to act, it is called Letters of Administration. In either case, the grant provides legal recognition of the personal representative’s authority to collect assets, deal with institutions and distribute the estate.
Technically, not every estate requires a grant of representation. Some smaller estates, or those with limited assets, may be capable of administration without applying to the Court. Financial institutions may release modest balances without a grant, and jointly held assets often pass automatically to the surviving owner.
However, in practice, it is becoming increasingly difficult to finalise an estate without one.
Privacy legislation, anti-money laundering and counter-terrorism requirements, and stricter internal compliance processes within banks and financial institutions mean that asset holders are often reluctant to deal with anyone who does not hold a Court issued grant.
The Australian Taxation Office has also tightened its processes. In many estates, particularly where there are refunds, capital gains issues, or ongoing trust matters, the ATO will not finalise outstanding tax returns or recognise the authority of the executor without formal evidence of appointment.
As a result, even where the law does not strictly mandate a grant, practical realities often make it necessary.
Each estate and state is different. Whether a grant of representation is required depends on the nature of the assets, their value, the institutions involved, and the potential risks of proceeding without formal authority. Careful advice at an early stage can prevent delay, duplication of effort and unnecessary cost later in the administration process.
For general background information, you are welcome to read the free resources produced by the Legal Practitioners’ Liability Committee in 2023, linked below. These materials provide helpful guidance on common estate administration issues. However, they are general in nature and do not substitute obtaining tailored legal advice about your specific circumstances.
When to use a lawyer
When There Is Real Property
If the deceased owned assets in their sole name, or as a "tenant in common" (not jointly), those interests do not pass automatically on death. They form part of the estate and will usually require a grant of representation before they can be transferred or sold.
This includes real estate, shares, bank accounts, digital assets and other financial assets that were not held as joint tenants.
Although it is possible in some jurisdictions to apply for a grant without a lawyer, the process involves strict formal requirements. Errors in asset disclosure, Court documents or supporting evidence can cause delay and, in some cases, expose the personal representative to personal risk.
More importantly, obtaining the grant is only the first step. The subsequent transmission, tax reporting and distribution of assets must be handled correctly. Legal advice helps ensure that the estate is administered efficiently and in accordance with the law.
When There Is No Will
If there is no valid Will, the estate must be administered under intestacy legislation.
The law sets out strict rules about who is entitled to apply for Letters of Administration and who inherits. These rules do not always reflect what the deceased may have intended, and they can become complex in blended families, estranged relationships or where there are children from different relationships.
It is not uncommon for genealogists or investigators to be engaged to confirm whether a legally entitled person is alive and able to inherit.
Administering an intestate estate requires careful compliance with statutory requirements. Distributing assets to the wrong person, or overlooking an entitled beneficiary, can expose the administrator to personal liability. Legal advice helps ensure the correct process is followed from the outset.
When You Are Time Poor or Overwhelmed
Administering an estate requires attention to deadlines, correspondence, asset collection, tax reporting and compliance with Court procedures.
Many executors are managing their own careers, families and personal commitments while also navigating grief. Even where an estate appears straightforward, the administrative burden can be significant.
We do not step in as executor. The responsibility and authority remain with you. Our role is to guide you through the process, help you understand your obligations, prepare the necessary documents and ensure that the estate is administered correctly.
Engaging a lawyer allows you to reduce stress, avoid procedural errors and move forward with confidence, while retaining control of key decisions.
When There Are Business Interests or Trusts
Company shares, unit trusts, discretionary trusts and partnership interests often require additional steps beyond the usual probate process.
In these situations, it is not only a question of transferring ownership. Issues of control, directorship, appointor roles, shareholder agreements and trust deeds must be carefully reviewed. Tax consequences and succession arrangements should be considered before any transfer or distribution takes place.
Estate administration involving business or trust structures often requires coordination between legal, accounting and financial advisers. While investment and financial decisions sit with accountants and financial planners, the legal authority to deal with shares, trust interests and control positions usually begins with the grant and the executor’s role.
We regularly work alongside trusted advisers to ensure that the legal framework is correctly established before broader financial decisions are implemented.
When There Are Significant Tax Issues
Capital gains tax, superannuation death benefits, testamentary trusts and outstanding income tax returns can create additional complexity during estate administration.
Tax outcomes often depend on how and when assets are transmitted, whether assets are sold within the estate or transferred to beneficiaries, and how the Will structures distributions.
Incorrect assumptions about tax treatment can materially reduce the value of the estate.
Executors are responsible for ensuring that final tax returns are lodged and liabilities are properly addressed before distribution. In some circumstances, the Australian Taxation Office will require formal evidence of authority before engaging with the estate.
We work collaboratively with accountants and financial advisers to ensure that the legal framework of the estate aligns with tax reporting obligations and distribution strategy.
When You Are Unsure of Your Obligations
Executors and administrators hold fiduciary duties to the estate and its beneficiaries. These duties include preserving assets, paying liabilities in the correct order, keeping proper accounts and distributing in accordance with the Will or intestacy legislation.
Acting without a clear understanding of these obligations can expose a personal representative to personal liability. This may include distributing too early, failing to identify liabilities, or overlooking tax or notice requirements.
Obtaining legal advice early helps clarify the scope of your authority, the sequence of required steps and the timeframes that apply. It ensures that decisions are made within the proper legal framework.