Probate in Victoria
A grant of probate is a document issued by the Supreme Court that gives a person the authority to administer a deceased estate in accordance with a will. A grant of probate is issued to the person who is named as the executor in the will. This page deals with grants of probate in Victoria.
Probate in Victoria is governed by the Administration and Probate Act 1958. Applications for probate in Victoria are made to the Supreme Court of Victoria in accordance with the Supreme Court (Administration and Probate) Rules 2014.
When is probate needed?
It is not always necessary to obtain a grant of probate when a person dies leaving behind a will. In some cases, an estate can be administered without a grant of probate. However, a grant of probate is always required where the deceased’s estate includes real estate.
Depending on the amount of money held by banks and insurance companies for the deceased, these institutions may be prepared to release the funds to the executor without a grant of probate.
Where the deceased held assets jointly with another person (such as their spouse) these may be able to be transferred to the surviving owner without a grant of probate – for example, where the deceased’s money was kept in a joint bank account.
When a person makes a will, they should specify one or more persons who they want to act as the executor of the estate. These are the persons who will apply for probate after the testator dies. It is generally advisable to nominate more than one person as an executor. The executor of a will may be a family member or friend of the deceased. It may also be a professional such as a lawyer or accountant.
If a will does not nominate an executor, or if the person named as the executor has already passed away or is unable to act for some reason, the Supreme Court will recognise the will through a different process. This process is known as a grant of letters of administration (rather than probate). This grant is made in favour of an administrator, which is usually the deceased’s next of kin.
If a person dies intestate (without a will), their estate will be distributed according to the rules of intestacy,
Applying for probate
If a person is named in a deceased’s will as an executor and a grant of probate is needed, they may apply to the Supreme Court of Victoria’s Probate Office for a grant of probate. This can be done with or without the assistance of a lawyer.
At least 14 days before applying, the executor must publish an online notice of their intention to apply for probate. This notice lets other people (for example, other executors) of the impending application.
An application for probate can then be lodged online. Once completed, the application must be signed and witnessed and is then uploaded in PDF format together with any other documentation that is required.
The court will contact the applicant if it requires more information before issuing the grant.
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 to distribute in accordance with the will.
In general, executors are not entitled to receive a fee out of a 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 where it is appropriate.
An executor may need to take some additional steps when taking out a grant of probate in Victoria. For example, they may need to open a bank account to hold assets in the estate’s name. If the deceased carried on a business, the executor will have to deal with the business, 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 have to respond to any challenges to the will and any applications for family provision orders.
Order of payments
When an executor distributes the assets of a deceased estate, they must follow a do so in a certain order. The assets in the estate must first be used to pay any funeral expenses, administrative expenses, debts and liabilities of the deceased. The remaining assets can then be distributed in accordance with the deceased’s will.
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