Which grant you need is settled by one question: does a valid will appoint an executor who is able and willing to act? If yes, the application is a grant of probate. If not, it is letters of administration, or letters of administration with the will annexed where a valid will exists but no executor can act.
Empower Probate Lawyers acts for executors, administrators and beneficiaries across NSW, from the first application through to final distribution. This guide explains how to sort your own situation into the right application, who is entitled to apply for each grant, and what the two applications actually share once they reach the registry.
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Which Grant Applies to Your Situation
One question sorts almost every estate into the right application, and you can answer it with the will in front of you. The Supreme Court of NSW treats this as a three-way split, not a two-way choice.
Your situation falls into one of three categories:
- Grant of probate. There is a valid will, and it appoints an executor who is able and willing to act. The executor applies, and the Court authenticates the appointment the will already made.
- Letters of administration. There is no will, or the will is not valid. The estate passes under the intestacy rules, and a person entitled to share in it applies.
- Letters of administration with the will annexed. There is a valid will, but no executor is available to apply, because none was named, or the sole executor has died, or is unwilling or unable to act. A beneficiary applies instead.
Getting this sort right at the start saves the weeks a wrong application costs you.
More: What Are Letters of Administration With the Will Annexed?
Where the Authority Comes From, and When It Starts
An executor named in a will is an executor from the moment of death, before any court document exists. An administrator does not exist as a legal person until a registrar signs the grant.
The difference is where the appointment comes from. The will appoints the executor, so a grant of probate authenticates an authority that already exists. An administrator’s authority is created by the grant, not confirmed by it.
Under the Probate and Administration Act 1898 (NSW), s 44, estate property vests in the executor or administrator as from the date of death once a grant issues. Section 61 of the same Act vests the estate in the NSW Trustee in the meantime.
So an administrator waiting on a grant cannot sell an asset, sue a debtor or close an account. An executor stands in a stronger position, but should still take advice before dealing with estate assets, because the reach of that relation back is contested. That question comes up most often over the family home, where the answer turns on whether you can sell estate property before probate.
Who Can Apply for Each Grant
Being the closest relative gives you no authority under a will, and a named substitute executor does not always have the right to apply.
For probate, the will fixes standing. Instituted executors apply first, and a substitute executor can only apply where the condition for their substitution has actually been met, such as the first-named executor dying before the deceased.
For administration on intestacy, entitlement fixes standing. Generally only a person entitled to share in the estate can apply, working down the order set by the Succession Act 2006 (NSW), Chapter 4:
- Spouses, including de facto and registered relationships
- Spouses together with children who are not children of that spouse
- Children, including the issue of a child who died first
- Parents
- Brothers and sisters, including the issue of a sibling who died first
- Grandparents
- Aunts and uncles
Each category must be exhausted before the next is reached, and the search stops at the first eligible relative. A relative who is not entitled cannot apply on behalf of one who is, which is why the adult child applying for a surviving parent is refused.
Consents, Bonds and Sureties
This is the step that stalls families, and it has no equivalent on the probate side.
Where only some of the people entitled to administration apply, the application must carry, for each person not applying, their written consent or an affidavit proving 14 days’ notice was served. The rule is the Supreme Court Rules 1970 (NSW), Pt 78 r 19.
A person under 18 or without capacity cannot consent, though a legal guardian or financial manager may consent for them.
The second requirement is the administration bond. Under the Probate and Administration Act 1898 (NSW), s 64, an administrator executes a bond with sureties before the grant issues, and Pt 78 r 23 requires two sureties unless the Court orders otherwise.
In practice, the Court requires the bond and two sureties where consents cannot be obtained, covering the shares of those who have not consented. Section 65 lets the Court dispense with the bond or a surety, or reduce the penalty.
A bond, sureties and consents can only ever be required on a grant of administration.
What Is Identical for Both Applications
Readers assume the two applications differ across the board. Across the parts the Court controls, they barely differ at all.
The filing fee runs off one scale, banded by the sworn gross value of the estate and applied to probate and administration alike. As at 1 July 2026, it is nil below $100,000, $960 from $100,000 to under $250,000, and $7,399 at $5 million and above, on the Supreme Court filing fees schedule.
Both applications need at least 14 days’ notice published on the NSW Online Registry in approved form UCPR 116, at $59. Both are then decided by a registrar in chambers, with no hearing.
The six-month rule is shared and widely overstated. Where a first application is filed more than six months after death, the supporting affidavit must explain the delay. That is an evidentiary requirement, not a deadline.
Any real cost difference between the two comes from professional fees, bond and surety costs, and the extra evidence administration needs, not from the Court.
Probate and Letters of Administration Compared
One table answers most of what people ring to ask. The last row corrects an assumption rather than adding a contrast:
| Criterion | Grant of probate | Letters of administration |
| Trigger | Valid will naming an executor able and willing to act | No valid will, or a valid will with no executor available |
| Who applies | The named executor, substitutes only once the substitution condition is met | Whoever is entitled to share, down the Chapter 4 order |
| Source of authority | The will, effective from the date of death | The grant, with no authority before it issues |
| Consents from family | Not required | Written consent or proof of 14 days’ notice from each entitled person not applying |
| Bond and sureties | Never required | May be required, with two sureties unless the Court orders otherwise |
| Court assessment time | The faster of the two | Materially further behind, on the Court’s published windows |
| Fee, notice, six-month rule | Same for both | Same for both |
The Court updates its assessment windows weekly, so check the Supreme Court of NSW before relying on a timeframe.
So Which One Do You Need?
Take the will first. If it is valid and names an executor who can act, you apply for a grant of probate, and you apply as executor, not as next of kin.
If there is no will, or the will has failed, apply for letters of administration, and expect to gather consents from everyone else entitled before you file. If there is a valid will but no executor left standing, the application is for letters of administration with the will annexed, and a beneficiary makes it.
Some readers need neither. Real estate held as joint tenants passes to the survivor by survivorship without any grant, and banks and other asset holders will often release modest balances on a death certificate and a declaration of entitlement.
Check what the deceased actually owned before you file anything, because the Court will not make a grant where there are no NSW assets to administer.
More: When Is Probate Required in NSW?
How Empower Probate Lawyers Can Help
Most of the delay in a NSW estate happens before anything is filed, while a family works out who is entitled to apply and chases consents. A wrong application is not just refused; it costs weeks the registry is already running behind.
We act for executors applying for a grant of probate, and for families applying for letters of administration where there is no will or no executor able to act. We advise on entitlement where someone has died without a will, on consents, bonds and sureties, and on the Supreme Court probate process from the first notice through to distribution.
Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.
Frequently Asked Questions
What is the difference between an executor and an administrator?
An executor is appointed by the will and holds that role from the date of death. An administrator is appointed by the Court and has no authority until the grant issues.
There is a will, so why can’t I apply for probate?
Probate is only available to an executor appointed by the will. If none was named, or the only executor cannot act, a beneficiary applies for letters of administration with the will annexed.
When are letters of administration required in NSW?
Where there is no will, the will is not valid, or no executor is available to act. Not every estate needs a grant, because joint-tenancy assets pass straight to the survivor.
Who can apply for letters of administration if there is no will?
Generally, only someone entitled to share in the estate can apply, working down the Chapter 4 order from spouses to aunts and uncles. A relative who is not entitled cannot apply on their behalf.
Does letters of administration cost more than probate?
The filing fee is identical for both: nil under $100,000 and $960 under $250,000 as at 1 July 2026. Administration often costs more overall, because of bond, surety and consent work.
Which application takes longer?
Letters of administration. The Supreme Court publishes the filing dates it is assessing each week, and plain administration sits materially further behind probate. Check the current window before promising a date.
Do I need an administration bond, and what are sureties?
The Court may require a bond before granting administration, and unless it orders otherwise the bond must carry two sureties. In practice, it is required where consents cannot all be obtained.
I have been named executor, but I do not want the role. What happens?
You can renounce probate using approved form UCPR 123, but not once a grant has been made. A beneficiary can then apply for letters of administration with the will annexed.
