Probate in Victoria

When a person dies, someone needs lawful authority to collect their assets, pay their debts and distribute what is left. The Supreme Court of Victoria describes a grant of representation as a legal document issued by the Court that enables the executor or administrator to deal with the deceased's assets. It confirms that the person named in the grant — the legal personal representative — may collect and distribute the estate.

A grant of probate is the form of grant issued to the executor or executors named in a will. It recognises the will for the purpose of the grant and confirms the executor's authority to administer the estate. The grant does not prevent every later dispute about the will or the administration.

Probate is not a tax and it is not a distribution of the estate. It is an authority. What happens with the money and property afterwards is governed by the will and by the executor's duties under the Administration and Probate Act 1958.

Which application you make depends on whether there is a will that can be admitted to probate and whether the executor named in it is able and willing to act.

Probate

Granted to the executor or executors named in the will the Court accepts for the purpose of the grant.

Letters of administration with the will annexed

Granted where the deceased left a will that can be admitted, but the executor cannot or will not apply — for example, because the executor has died, lacks capacity, or renounces. The Supreme Court notes that this grant is generally made in favour of the persons with the greatest interest under the will.

Letters of administration

Granted where the deceased did not make a will, or the will they made cannot be admitted to probate. In most instances the grant is made to the closest surviving next of kin. The estate is then distributed under the intestacy provisions of the Act rather than under a will. This is covered in more detail in our guide to letters of administration in Victoria.

The Supreme Court is clear that grants are not always needed, and that you should contact each asset holder to find out directly whether they will require a grant before releasing money. Generally, the requirement depends on:

• The nature and extent of the assets. Some banks and insurers may release modest amounts without a grant, sometimes on conditions. If the executor must prove their title to an asset, a grant will be necessary.
• Whether the deceased owned real estate solely or as a tenant in common. In that case the Court states a grant is always required.
• Whether assets were held jointly. Where assets pass to a surviving joint holder, a death certificate may be enough. For jointly held Victorian land, an application by surviving proprietor may be lodged with the land registry instead of a transmission application.

Because institutions set their own thresholds, the practical answer often comes from asking them. A short list of the deceased's accounts, holdings and property, with approximate values, is usually enough to get a clear answer.

Applications in Victoria are made online through the Court's RedCrest-Probate system. The Supreme Court sets out the sequence, which in outline is:

1. 1Work out whether a grant is neededConfirm with the asset holders and identify the property involved.
2. 2Identify the type of grantProbate, letters of administration with the will annexed, or letters of administration.
3. 3Gather the documentsThe original will and any codicils, the death certificate showing cause of death, a list of assets and liabilities, and contact details for those named in the will.
4. 4Advertise your intention to applyPublish the notice online through RedCrest-Probate at least 15 days before you apply.
5. 5Prepare and swear the affidavitThe affidavit and the inventory of assets and liabilities are generated through the system and must be signed before an authorised witness.
6. 6File the applicationUpload the affidavit, will and codicils, death certificate and inventory, and pay the filing fee.
7. 7Respond to any requisitionThe Registrar may require further material before the grant issues. Clear, complete answers keep the application moving.

The Probate Office also operates an optional service that can prepare an application for a small estate, where the estate is under the small estate limit and the application is simple.

• The original will cannot be found, or only a copy exists.
• The will was not signed or witnessed in the way the Wills Act 1997 requires, or there is a question about the deceased's capacity.
• An executor has died, cannot act, or wishes to renounce.
• There are informal documents, alterations or later handwritten changes.
• Assets are held outside Victoria, or a grant already exists in another jurisdiction and needs to be resealed.
• A caveat has been filed, or a family provision claim is foreshadowed.

Any of these is a reason to get advice before filing. An application that is accurate and complete when it is filed avoids the need to correct it later.

Estate work does not all wait for the grant. Locating the will, arranging the funeral, securing and insuring property, identifying assets and liabilities, and notifying relevant bodies can be attended to beforehand, and steps reasonably necessary to preserve the estate should not be deferred. What the grant supplies is formal proof of the personal representative's authority, which institutions and transactions such as collecting accounts, transferring land or selling an asset commonly require.

With the grant in hand, the legal personal representative can deal with those institutions, attend to the deceased's tax, pay debts and expenses, keep records, and distribute the estate. Those steps, and the timing risks around them, are set out in our guides to estate administration and executor duties.