When is probate required in Victoria?

A grant of representation is the Supreme Court's formal recognition of who has authority to administer a deceased person's estate. Where there is a will, the grant to the named executor is a grant of probate. The Supreme Court explains that whether a grant is needed depends on the assets and on the requirements of the organisations holding them: How to determine if a grant is required.

The practical test is therefore not 'how large is the estate?' but 'will each asset be released, transferred or sold without a grant?'. An estate with modest value can still need a grant because it includes land in the deceased's sole name. A more valuable estate may need none if everything was jointly owned or passes outside the estate.

This guide is a checklist for answering that question. It does not explain the application itself; for the grant types and the application pathway, see Probate in Victoria, and for the ordered online steps see how to apply for probate.

The way an asset was owned at the date of death is usually the most important fact. Record ownership for each item before contacting institutions, using titles, statements and registry records rather than memory.

A title search is the reliable way to confirm how land is held. Land Use Victoria distinguishes an application by a surviving joint proprietor from an application by an executor or administrator after a grant; its lodgement guidance explains the transaction types.

Banks, share registries, insurers and other institutions set their own requirements for releasing a deceased person's assets. Some will release modest sums on production of a death certificate, a copy of the will and an indemnity. Others require a grant for any amount. Their requirements can differ between institutions and can change.

1. 1List every asset and its holderInclude account numbers, registry references and approximate values at the date of death. Do not guess values that will later need to be stated to the Court.
2. 2Notify the death and ask a precise questionAsk whether the institution will release or transfer this asset without a grant and, if so, what documents it needs. Keep the answer in writing.
3. 3Record the answers asset by assetOne institution requiring a grant usually decides the question for the whole estate, because a grant is obtained once rather than asset by asset.
4. 4Check land separatelyConfirm by title search whether Victorian land was held solely, as tenants in common or as joint tenants.

An institution's willingness to release funds without a grant is a commercial decision by that institution. It is not a ruling that the person collecting the funds is entitled to them, and it does not relieve that person of the obligation to deal with the money for the estate.

Victorian land held in the deceased's sole name, or the deceased's share as a tenant in common, ordinarily cannot be transferred to a beneficiary or sold without a grant. The executor or administrator then deals with the land through a transmission application or sale, as explained in the estate administration guide.

Land held as joint tenants is different. On death, the deceased's interest ordinarily passes to the surviving joint proprietor by survivorship, whatever the will says. The survivor records the death on title through a survivorship application rather than by relying on a grant. That property is then generally not dealt with under the will, although it may remain relevant to other questions, such as family provision claims.

Superannuation does not automatically form part of a deceased estate. The trustee of the fund pays the death benefit according to the governing rules, legislation and any valid binding nomination. The benefit may be paid directly to a dependant, or to the legal personal representative, in which case it becomes an estate asset and a grant may be needed to receive it.

Life insurance, assets held in a family trust, and property owned by a company controlled by the deceased also follow their own rules. A trust or company asset is not the deceased's personal property, even if the deceased controlled the entity. Identify these assets, but do not include them in the estate inventory as if the deceased owned them personally without checking.

A Victorian grant deals with the estate in Victoria. Assets in another State, Territory or country may require a separate grant, a reseal of the Victorian grant or a local process. Conversely, where a grant has been made elsewhere, the executor may need to have it resealed in Victoria to deal with Victorian assets. The Court's unusual applications guidance covers some of these cases.

A grant can still be worth considering where there is doubt about who has authority, where family members disagree, where the executor needs clear standing to deal with third parties, or where an asset may later be discovered. A grant also fixes the start of the general six-month period for family provision applications under section 99 of the Administration and Probate Act 1958 (Vic), subject to the Court's power to extend time.

A grant confirms the representative's authority and the Court's treatment of the will for the purpose of the grant. It does not conclusively prevent every later dispute about the will or the administration. Deciding not to obtain one should be a deliberate decision, not simply a way of avoiding cost.

1. 1Is there Victorian land in the sole name or as tenant in common?If yes, a grant is ordinarily required.
2. 2Has any asset holder said it needs a grant?If yes, a grant is required to deal with that asset.
3. 3Is everything jointly held or passing outside the estate?If yes, a grant may not be needed; confirm each survivorship and nomination process.
4. 4Is authority, the will or entitlement likely to be disputed?Consider legal advice before deciding not to apply.
5. 5If a grant is needed, which kind?Probate where an executor applies under a will; letters of administration where there is no will, or where there is a will but no executor able and willing to apply.

We can review the asset list and ownership records, identify which items are likely to require a grant, and explain the consequences of proceeding with or without one. If a grant is needed, we can advise on the correct type and on the application. Many people make the enquiries in this guide themselves; legal help is most useful where the ownership, the will or the family position is unclear.

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