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If there is no will then the person dealing with the deceased’s estate applies to the probate division of the High Court for a Grant of Letters of Administration which gives that person the legal right to deal with the assets. If there is a will with a named executor then that person may apply to the court for a Grant of Probate. Unlike an executor named in a will, an administrator does not automatically have the authority to begin collecting and distributing the deceased’s assets until that person applies to the court and receives a Grant of Letters of Administration.


As long as the executor faithfully abides by the specifications set forth by the testator in the terms of the will, there is little that anyone can do to strip the executor of this authority. Should the executor fail to properly perform any of their duties, the proper recourse is to apply to the court to have the executor dismissed. If the court grants the dismissal, someone new is appointed to carry out the testator’s wishes.


A testator can elect to grant the executor very wide powers. It is not uncommon for a testator to appoint the executor as trustee of the estate and give that person a good deal of discretion in distributing the assets. More than one person can be named as executor. In these instances, all of the people named in the will to a maximum of four can apply to the court for a jointly held grant of probate. Typically the court refrains from picking and choosing and instead orders that the parties jointly share the responsibilities. Any of the people named as executor can choose to decline the position.

Grant of Probate or Letters of Administration?

To receive a Grant of Probate, the person named as executor must first make an application to the court. The application must include the original will as well as a document that lists and values all of the assets in the deceased’s estate. Once the application has been prepared, the executor must then swear an affidavit that details the deceased and their assets. The last step is for the court to seal and issue the Grant of Probate to the executor to assist the executor in carrying out the terms of the will.


Executors are appointed solely by will. If there is no will, there is no executor. Not having a named executor further complicates the probate process for your loved ones. It adds yet another step to an already complex process. In cases where there is no executor, an interested party applies to the court for Letters of Administration. Typically the interested party is a relative of the deceased and believes they have some claim to the deceased’s assets. The person who is granted Letters of Administration carries out duties similar to those performed by an executor. That individual is responsible for the collection and distribution of the deceased’s assets in accordance with intestacy law.


Rather than follow the instructions set forth in a will, however, this person will distribute the estate according to the intestacy rules which set forth the relatives who may inherit assets from the estate and their priority in receiving those assets. Should the deceased have no qualifying relatives, the assets may be claimed by the State.


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