Probate In Melbourne

In Melbourne, an appropriate person is afforded the authority, or “probate”, to administrate a deceased estate. The form of that probate varies depending on whether the deceased made a valid will before he or she died. When a testator leaves a valid will naming an executor to manage their estate, the executor can attain a Grant of Probate from the Probate Office of the Supreme Court of Victoria. If the deceased did not produce a valid will naming an executor, an eligible party can apply for Letters of Administration to be appointed as a personal representative of the estate, or “administrator”. This article explores the purpose of probate in Melbourne with particular focus on the types of probate grants available to executors and administrators.

What is probate in Melbourne?

Corresponding to the provisions of the Administration and Probate Act 1985, the Supreme Court of Victoria issues a probate grant to a nominated executor or appropriate administrator. The grant, which is a document, authorises the personal representative to act on behalf of the deceased estate in all administrative and financial matters, and to defend the estate from legal challenge and contest. The grant also validates and affirms the instructions contained in the will with regard to the distribution of the estate.

Once the court awards a probate grant to a personal representative, he or she can begin to wind up the deceased estate in Melbourne. The document allows the executor or administrator to “call in and collect” the deceased’s assets, through:

The sale of any real estate;
The sale of investments eg. shares;
The transfer of bank accounts to the executor as trustee of the deceased estate; and
The sale of personal belongings.

Is it compulsory to apply for probate in Melbourne?

It is appropriate to apply to the Supreme Court of Victoria for probate if the deceased was a resident or owned real estate within the state. Some banks and government departments require the presentation of a probate grant before they will cooperate with a personal representative and release funds into the deceased estate. Many banks in Melbourne will release minor amounts of money without a probate grant if the executor or administrator agrees to indemnify them against any future liability.

Some personal representatives choose not to apply for a probate grant because there is little prospect of anyone disputing the will, and the estate is on the smaller side. This is often the case if the primary assets of a deceased are the family home held in joint tenancy with a spouse. In that instance, the right of survivorship will transfer the whole of the property to the surviving spouse, and the property never forms part of the deceased estate.

Even if probate is not strictly required, it can be prudent for a personal representative to obtain a grant of probate to avoid personal liability. Anyone who interferes in the administration of a deceased estate without the authorisation of the court can be held personally responsible for any financial loss.

Types of probate

In Melbourne, an applicant applies for a different probate grant depending on the testamentary circumstances of the deceased. The Supreme Court will prove a valid will and affirm the appointment of an executor with a Grant of Probate, or grant an eligible administrator Letters of Administration or Letters of Administration With The Will Annexed, depending on whether the deceased died with a will or was intestate.

Eligibility to apply for probate in Melbourne

An executor named in the testator’s last will may apply for a Grant of Probate. A potential beneficiary of the estate can apply for Letters of Administration with the Will Annexed if the deceased made a will but neglected to choose an executor, or the chosen executor/s renounces the appointment, predeceases the testator, or is unable to make the application. Alternatively, an administrator of an intestate estate may apply for a Grant of Letters of Administration. When there are competing applications for Letters of Administration, the court will give preference to either the deceased’s next of kin or the principal beneficiary of the estate.

Applying for probate in Melbourne

An applicant for probate in Melbourne must follow certain steps before filing with the Probate Office. This includes drafting an application and preparing affidavits (in support, listing assets and liabilities, proof of publication and searches). Generally, the court will grant probate within 4-6 weeks unless there are objections to the application or requisitions for further information.

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Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.