Probate in Victoria, as in all other Australian States and Territories, is the process of proving a person’s will. Provided that a valid will exists it is the role of the executor to apply for probate after the death of the person who made the will. Probate gives an executor power to obtain title to the assets, and authority to distribute them in accordance with the will. The law of probate in Victoria is outlined in the Administration and Probate Act 1958 (Vic). Applications for probate in Victoria are made to the Supreme Court of Victoria in accordance with the Supreme Court (Administration and Probate) Rules 2014 (Vic).
Who is my executor?
When you make a will, you should specify a person who you want to be the executor of your estate. They are the person who will apply for probate after you die. If you plan to distribute any of your assets to beneficiaries of your estate by setting up trusts, the executor also often acts as the trustee (although this must be specified in your will).
If you do not nominate an executor, the Supreme Court will grant letters of administration rather than probate to an administrator, which will usually be a next of kin. If you only name one executor in your will and they die before you do, your will is not revoked, instead, the Supreme Court of Victoria will grant letters of administration to an administrator rather than probate. You should therefore generally appoint more than one executor. Alternatively, you could appoint a trustee company or the State Trustees (for a fee) to act as your executor.
A solicitor can act as your executor, but they may choose not to because lawyers are subject to special professional standards. The important thing is to appoint somebody you trust.
Making an application for probate
Probate is applied for in accordance with the Supreme Court (Administration and Probate) Rules 2014. The Supreme Court of Victoria’s probate office, is where you file an applications for probate and it provides some guidance on the process. At least 14 days before applying, the executor has to make an online notice of their intention to apply. This lets other people know (for example, other executors) of the impending application. An Originating Application is then lodged with the Supreme Court of Victoria. It is supported by other evidence such as an affidavit of the executor and an affidavit as to the will’s execution in certain circumstances (e.g. when the will appears to have no date of execution).
An inventory of the deceased’s assets and liabilities must also be provided. Further affidavits may also be required if the Registrar thinks they are needed. Importantly, you also need to file the original will and codicils to the will (i.e. documents amending the will), together with the original death certificate of the will-maker. Wills can be deposited with the Registrar, so this may save some time later down the track.
If probate is granted, you can still be discharged from acting as executor. You can apply to the Supreme Court of Victoria to be discharged from the role simply because you no longer want to be executor.
What happens after probate is granted?
After probate is granted, the assets of the deceased will vest in the executor. This means the assets are placed under the executor’s authority. The executor will also have authority to distribute those assets in accordance with the will-maker’s will. Generally speaking, the executor is not entitled to receive a fee out of the deceased’s estate, but the Supreme Court of Victoria can make orders that allow the executor to keep up to 5% of the deceased’s assets.
The executor may need to take a number of steps with respect to probate in Victoria. For example, they may need to open a bank account to hold assets in the estates’ name. If the will-maker carried on a business before they died, the executor will have to deal with the business and attend to tax issues and decide whether to wind up the business. They may also have to lodge an income tax return for the estate with the Australian Taxation Office. Most importantly, they will also have to deal with challenges made to the will and applications for family provision orders if they occur.
Order of payments
There is a specific order that must be complied with when the executor distributes the assets. Firstly, the assets must be used to pay out funeral expenses, administrative expenses, debts and liabilities of the deceased. Whatever remains can be distributed in accordance with the will-makers’ will.