Probate

A Grant of Probate is a legal document, which the Court will issue if a deceased person has left behind a Will. The document confirms the validity of their Will and the appointment of an executor (named in the Will) who will then have authority to finalise their affairs.

To apply for probate, you must be an executor named in the Will and over 18 years of age.

Table Of Contents

Executor

An executor is the person appointed to administer the estate, which refers to a deceased person’s property, assets and debts outstanding at the time of death. In the absence of a Will, you should apply for a Grant of Letters of Administration.

It is the role of the executor to follow the instructions set out in the Will. The executor is accountable to the beneficiaries and must act in their best interests. Typically, an executor will be required to perform the following duties:

  • Identifying all assets and liabilities
  • Arranging funeral services
  • Notifying the relevant authorities
  • Obtaining a Grant for Probate
  • Paying outstanding debts
  • Arranging tax returns
  • Claiming life insurance
  • Identifying beneficiaries
  • Distributing the estate in accordance with Will
  • Resolving disputes

If a sole executor cannot, or will not, prove the Will, then any interested party may apply for Letters of Administration with the Will Annexed. The person appointed in the Will must sign a renunciation, which is then filed with the application for a Grant.

Complex Estates

Whilst many applications are straightforward, other estates require further attention due to the amount of detail in a Will. For example, an estate may become complicated if the deceased had established a testamentary trust or owned businesses with complex structures. In these circumstances, we will assess the complexity of the estate and advise you of the costs associated before we proceed.   

Process

1. Will and Death Certificate

You will need to provide us with the Will (original) as this must be filed with the application together with a certified copy of the death certificate.

2. Assets and Liabilities

The court requires an inventory of the deceased person’s assets and liabilities so you will need to gather as much information as possible. This includes:

  • Bank statements
  • Utility bills
  • Assets owned such as real property, cars, jewellery and other valuables
  • Superannuation statements
  • Insurance policies
  • Shares
  • Tax returns
  • Fines

3. Notify Authorities

Once we have obtained all documentation relating to assets and liabilities, we will notify the relevant authorities of the person’s passing and direct any future correspondence to our office.

4. Advertise

Prior to filing an application with the court, we will publish a notice of intended application on the Probate Online Advertising System. The advertisement serves as a notice that an application for Probate is to be made after the expiration of 14 days.

Although advertisements do not expire, we recommend applying for a Grant within 6 months of the publication date.

5. Application

An application for a Grant must include an executor affidavit. The executor must take an oath or affirmation before signing this document to confirm that the Will is the last left by the deceased. The affidavit also identifies any assets and liabilities outstanding at the time of death.

Once all forms are complete and signed, we will file your application with the Probate Office, which carries a filing fee of $320.00.

The complexity of the estate will determine how quickly a Grant is issued. It is not uncommon for the process to take several months. Once we file your application with the Supreme Court, however, it will notify you of its decision within 10 days.

If the court issues a Grant of Probate, the executor can proceed with collecting assets. The executor should pay all liabilities before distributing the estate to beneficiaries. If a grant is issued to more than one executor, the executors must act jointly.

Requisitions

On occasion, the Supreme Court Registry may request further documentation or information before issuing a Grant. These are known as requisitions, which indicate that your application is in some way unsatisfactory. You may need to re-submit an affidavit addressing the Registrar’s queries or re-advertise, for example. The court will not issue a Grant until we resolve each requisition.

Who May See the Will?

A Will becomes public property once a court issues a Grant. However, the Wills Act 1997 (Vic) prevents any persons except for the following from viewing the Will:

  • Any person named or referred to in the Will
  • any person named or referred to in an earlier will as a beneficiary;
  • spouse at date of death;
  • domestic partner of deceased;
  • parent, guardian or children of deceased;
  • any creditor or person who has a claim against the estate and produced evidence of that claim.

Contesting a Will

To challenge a Will, the applicant must be able to demonstrate that the deceased had a ‘moral duty’ to provide for them. Generally, the applicant must be a close relation to the deceased such as their spouse, domestic partner, child or parent. However, other relationships may be considered. The court will take various factors into account such as:

  • The length and nature of their relationship
  • Any disabilities of the applicant
  • The applicant’s earning capacity and financial needs
  • The applicant’s age, character and conduct
  • The size of the estate
  • Whether there was a contribution made by the applicant to the size of the estate or the well-being of the deceased
  • Whether the deceased supported the applicant before their death

A person may challenge the validity of a Will if there is reason to believe that the document was forged, the deceased was lacking mental capacity at the time or they made the Will under the influence of others.

If a person wishes to challenge a Will, they must do so within 6 months of the Grant of Probate.

Help with Wills, Estate and Probate.

We can help you navigate the process with a simplified approach that will enable you to be well informed and prepared for the future. Contact us online or call 1300 057 056 to arrange a consultation today.

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