A Complete Guide to Probate in Victoria

Probate is the legal process of proving a deceased person’s Will in the Supreme Court of Victoria, thereby giving the executor named in the Will authority to manage the deceased’s estate.

In cases where there is no Will, or the Will is invalid, the deceased’s next of kin can apply to the Supreme Court for a grant of Letters of Administration. Upon granting, it is the administrator who is given authority to manage the deceased’s estate.

Sometimes, finalizing the deceased’s affairs can be done without requiring anything from the Court. However, before banks and financial institutions will release monies they need to know they are dealing with someone who has legal authority to deal with the deceased’s affairs.

Probate provides assurance and simultaneously confirms the Will’s validity. Generally, the requirement for Probate depends on the nature and extent of the deceased’s assets, including real estate, bank accounts and shares.

The following steps set out the requirements for obtaining a grant of Probate.

1. The executor should gather the necessary evidence and supporting documents required by the Court, including:

• The original Will and any Codicils
• The Death Certificate noting Cause of Death
• A list of the deceased’s assets and debts (including bank accounts, property, loans, shares and other investments etc).

2. The executor needs to advertise his/her intention to apply for a grant of Probate on the Supreme Court website.

3. The advertisement must be published at least 14 days before the executor can formally apply for a grant of Probate.

4. The executor must also complete and swear an Affidavit setting out the requisite information including an inventory of the estate’s assets and liabilities. Exhibited to the Affidavit is a copy of the Will and the Death Certificate noting Cause of Death.

5. Once the Affidavit of Executor has been duly sworn, it is filed with the Court together with payment of the requisite filing fee. The filing fee is based on the net value of the estate at the time of death as per the inventory of assets and liabilities.

6. After the Affidavit of Executor has been filed and the requisite fee paid, the Court will issue an Originating Motion, which includes the Court reference number.

7. The next step is to file with the Court a copy of the Originating Motion together with the original Will. This should be done in person or via express post (so it can be tracked).

8. All things being equal, Probate is usually granted within 14 days.

The steps involved in applying for a grant of Letters of Administration are almost identical, except that no Will is involved.

In the case of small estates, where items like real estate and shares are not involved, it may not be necessary to obtain Probate or Letters of Administration. If in doubt, you should seek legal advice.

Once Probate is granted, the executor is responsible for administering the estate in accordance with the deceased’s wishes as outlined in his/her Will.

Roles that an executor may be required to fulfil, include but are not limited to:

• Locating and notifying the beneficiaries named in the Will;
• Identifying the estate’s debts and liabilities, and attending to their payment; and
• Dealing with the deceased’s bank and life insurance companies

The executor must always act in the best interest of the estate and its beneficiaries.

In the case of Letters of Administration, the administrator must follow the laws of intestacy regarding the distribution of the deceased’s estate. These are set out in the Administration and Probate Act 1958.

Whilst anyone can prepare and lodge a Probate application, it should be noted that a number of difficulties can arise. Accordingly, legal representation from the outset is strongly recommended.

Allegations may be made:

• Questioning the deceased’s capacity to make the Will; and/or
• That the deceased faced undue influence when the Will was made.

In addition, there may be other problems such as:

• The requisite formalities of the Will have not been complied with, including insufficient witnessing.
• The condition of the original Will, rendering it illegible in parts, or otherwise unacceptable.

Applying for Probate can be a complicated task, particularly as you simultaneously navigate the challenges of grief and loss. We are here to help you through this difficult time.

Contact our Wills & Estates Team at Sanicki Lawyers for assistance.