Letters of Administration vs Probate: What's the Difference?

Two Paths, One Purpose

When someone dies in Australia, their estate needs to be administered — debts paid, assets collected, and property distributed. The legal process for authorising someone to do this depends on one critical question: did the deceased leave a valid Will?

• If yes — the executor named in the Will applies for a Grant of Probate
• If no — an eligible person applies for Letters of Administration

Both grants serve the same fundamental purpose: they give a named person the legal authority to deal with the deceased’s assets. But the processes, requirements, and implications differ significantly.

This guide explains both paths in plain English, so you understand what is involved whether you are an executor, a potential administrator, or someone simply planning ahead.

What Is Probate?

A Grant of Probate is a court order that:

1. Confirms the deceased’s Will is valid
2. Authorises the executor named in the Will to administer the estate

The executor is the person the deceased chose to carry out their wishes. They are named in the Will and have the legal duty to collect assets, pay debts, and distribute the estate according to the Will’s instructions.

For a detailed guide to the probate process, including costs and timelines, read our article on what probate is in Australia.

Key Features of Probate

• Who applies: The executor named in the Will
• Authority comes from: The Will itself (probate confirms it)
• Distribution: According to the deceased’s wishes as set out in the Will
• Typical timeline: 4 to 12 weeks for the grant, 6 to 12 months for full administration
• Court involvement: Primarily administrative — the court reviews the application and issues the grant

What Are Letters of Administration?

Letters of Administration is a court order that:

1. Appoints an administrator to manage the deceased’s estate
2. Authorises that person to collect assets, pay debts, and distribute the estate

Letters of Administration are required when there is no valid Will — either because the deceased never made one, or because the Will they made is invalid (improperly signed, revoked by marriage, etc.).

In some cases, Letters of Administration may also be required when there is a Will but the named executor is unable or unwilling to act.

Key Features of Letters of Administration

• Who applies: A person entitled under the intestacy rules (usually the spouse, then the next of kin)
• Authority comes from: The court (there is no Will to authorise anyone)
• Distribution: According to the intestacy laws of the relevant state — not the deceased’s wishes
• Typical timeline: 6 to 16 weeks for the grant, 6 to 18 months for full administration
• Court involvement: More involved — the court must determine who is entitled to apply and may require a surety bond

Who Can Apply for Letters of Administration?

Not just anyone can apply. The court follows a priority order, which is based on who would benefit from the estate under the intestacy laws. The typical priority is:

1. The surviving spouse or de facto partner
2. The deceased’s children (adult children)
3. The deceased’s parents
4. The deceased’s siblings
5. Other next of kin (nieces, nephews, grandparents, etc.)

If the person with the highest priority does not wish to apply (or is unable to), the next person in the priority order may apply. If no eligible person applies, the court may appoint the Public Trustee to administer the estate.

In some states, if multiple people have equal priority (e.g., several adult children), they must agree on who will apply — or the court will decide.

Letters of Administration with the Will Annexed

There is a third category that sits between probate and standard Letters of Administration: Letters of Administration with the Will Annexed (sometimes called “Letters of Administration cum testamento annexo” or “Letters of Administration CTA”).

This applies when:

• The deceased left a valid Will but did not name an executor
• The named executor has died, lost capacity, or renounced the role
• The named executor cannot be found

In this case, the court appoints an administrator to carry out the Will’s instructions. The distribution follows the Will (not the intestacy laws), but the administrator is court-appointed rather than chosen by the deceased.

A Side-by-Side Comparison

The Cost Difference

Letters of Administration is generally more expensive than probate for several reasons.

Court Filing Fees

Court filing fees for Letters of Administration are similar to probate fees in most states (see our probate cost guide for a state-by-state breakdown). However, some states charge slightly more for Letters of Administration.

Surety Bonds

In several states, the court requires the administrator to provide a surety bond (also called an “administration bond”). This is a guarantee — backed by a third party — that the administrator will faithfully administer the estate. The bond amount is typically equal to the gross value of the estate.

Obtaining a surety bond involves:

• Finding a guarantor (often a friend or relative willing to be bound)
• Or paying an insurance company to provide the bond (which costs a percentage of the estate value)

This requirement does not apply to probate, since the executor was chosen by the deceased and authorised by the Will.

Legal Fees

Solicitor fees for Letters of Administration tend to be higher than for probate because:

• The application is more complex (no Will to guide the process)
• The court may require additional affidavits and evidence
• Disputes about who should be appointed administrator are more common
• The administrator may need legal guidance on the intestacy distribution rules

Administration Costs

Without a Will, the administrator often faces higher ongoing costs:

• No named executor means the administrator may need to advertise for creditors more extensively
• Disputes among family members about distribution are more common
• The administrator may need legal advice on how intestacy rules apply to specific assets

What Happens to the Estate Without a Will?

When Letters of Administration are granted, the administrator must distribute the estate according to the intestacy laws of the relevant state. These laws follow a rigid formula that cannot be changed by the administrator, the family, or the court.

The general hierarchy is:

1. Spouse or de facto partner receives a statutory legacy plus a percentage of the remainder
2. Children share the balance (equally, regardless of need or relationship quality)
3. Parents, siblings, and extended family in a fixed order of priority
4. The Crown (the state government) if no eligible relatives can be found

The specific amounts, percentages, and priority orders vary between states. For a detailed explanation, read our guide on understanding intestacy laws in Australia.

The key problem with intestacy is that the laws cannot account for:

• Friends you wanted to provide for
• Charities you wanted to support
• Family members you wanted to exclude
• Specific gifts of sentimental items
• Trusts for minor children
• Guardianship preferences

All of these can only be addressed through a Will.

When Letters of Administration Are Required Even With a Will

There are several scenarios where Letters of Administration (with the Will annexed) may be needed even though a Will exists:

The Executor Has Died

If the named executor predeceased the testator and no backup executor was named, the court appoints an administrator to carry out the Will.

Prevention: Always name a backup executor in your Will. ezyWill prompts you to do this during the Will creation process.

The Executor Refuses to Act

An executor can renounce their appointment — formally decline to take on the role. If no backup executor is named, the court appoints an administrator.

Prevention: Discuss the role with your chosen executor before naming them. Make sure they are willing and prepared. For guidance, see our article on how to choose the right executor.

The Executor Has Lost Capacity

If the named executor has lost mental capacity (e.g., due to dementia) and cannot apply for probate, the court may appoint an administrator.

The Will Is Partially Invalid

If parts of the Will are invalid (but other parts are not), the court may grant Letters of Administration with the Will annexed, applying the valid parts of the Will and using intestacy rules for the rest.

The Strongest Argument for Having a Will

The difference between probate and Letters of Administration is one of the strongest arguments for creating a Will. With a Will:

• You choose your executor — someone you trust, who knows your wishes
• You decide who gets what — not a government formula
• You can set up trusts, nominate guardians, and make charitable bequests
• Your estate is administered faster and more cheaply
• Your family avoids the additional complexity, cost, and potential for disputes that come with Letters of Administration

Creating a Will takes about 20 minutes with ezyWill. The cost of not having one can be measured in months of delay, thousands of dollars in additional fees, and the emotional toll on your family.

Create your Will with ezyWill today — and ensure your estate goes through probate, not Letters of Administration.

This article is for general informational purposes only and does not constitute legal advice. The requirements for probate and Letters of Administration vary by state and territory. For complex estates or contested situations, we recommend consulting a qualified solicitor. ezyWill provides legally structured Will templates tailored to Australian state and territory requirements.