Probate in Victoria: what executors need to know

Probate is the formal grant by the Supreme Court of Victoria confirming that a will is valid and that the person named as executor is authorised to act. The grant is the executor's credential — it is the document banks, share registries, Land Use Victoria and other asset holders rely on before releasing or transferring assets held in the deceased's name.

When is a grant of probate needed?

Whether probate is required depends on the assets in the estate, not the size of the estate as a whole. In practice:

• Real property held solely in the deceased's name: probate is normally required before Land Use Victoria will register a transfer or transmission application.
• Real property held as joint tenants: probate is not required. The surviving joint tenant becomes sole owner by survivorship, evidenced by a survivorship application.
• Bank accounts: most banks require probate above a threshold (typically in the range of a few tens of thousands of dollars). Smaller balances are usually released against a statutory declaration.
• Shares: share registries generally require probate above small thresholds.
• Superannuation: paid by the fund trustee under the fund's rules; probate is only relevant where the payment is being made to the estate.
• Life insurance: paid on satisfaction of the insurer's requirements; probate may be needed if the policy is owned by the deceased and paid to the estate.

The application process

Applications for probate in Victoria are made to the Probate Registry of the Supreme Court of Victoria. The general steps are:

1. Locate the original will. The court requires the original — a copy cannot be admitted without a separate court order. Check the deceased's papers, safe deposit box, and any lawyer's safe custody service.
2. Confirm identity and death. A death certificate from the Victorian Registry of Births, Deaths and Marriages is normally required.
3. Advertise the intention to apply. Under the court's rules, notice of intention to apply for probate must normally be published on the court's online Wills and Probate Advertising system at least 14 days before the application is filed.
4. Prepare an inventory of assets and liabilities. Gross values of each asset at the date of death, and the liabilities of the estate.
5. Prepare the application. The originating motion, affidavit of executor, the original will (if not already lodged) and supporting evidence are filed with the Probate Office.
6. Deal with requisitions. The registry may raise questions about identity, execution of the will or asset details before the grant is made.
7. Grant issued. A grant of probate is issued sealed by the court, with an authenticated copy of the will annexed.

For a straightforward estate, the process from starting work to grant is typically six to twelve weeks. Complex or contested matters can take considerably longer.

Where there is no valid will

Where the deceased did not leave a valid will, the equivalent grant is called letters of administration. The person entitled to apply is the next of kin, in the order set out in the rules of court. See our separate article on letters of administration in Victoria for more detail.

The executor's core duties

1. Locate the will and confirm appointment as executor.
2. Notify family and beneficiaries of the death and the appointment.
3. Take practical steps to secure assets — property, vehicles, valuables — and confirm insurance is in place.
4. Notify banks, insurers, share registries and other asset holders.
5. Prepare the inventory of assets and liabilities.
6. Apply for probate.
7. Collect assets, pay debts, deal with any tax obligations, and prepare estate accounts.
8. Distribute the estate to beneficiaries in accordance with the will.

An executor has personal exposure for getting these steps wrong. Distributing too early — before the six-month period during which a family provision claim can be brought has expired — can result in the executor being personally liable if a successful claim is later made. Legal advice at the outset is a sound investment.

Compensation for executors

A professional executor is entitled to charge for their work if the will authorises it. A lay executor may be entitled to commission at the court's discretion, on application. Most family executors act without commission but seek reimbursement of expenses.

Delays and difficulties

The most common causes of delay:

• The original will cannot be located.
• The will has been executed informally and requires an application under section 9 of the Wills Act 1997 (Vic).
• Family provision claims are anticipated and the executor holds distribution pending expiry of the claim period.
• Complex assets — a family company, self-managed superannuation fund or interest in a trust.
• Interstate or overseas assets.
• Disputes between beneficiaries.

For legal advice on obtaining probate, see our probate applications service and the broader probate and deceased estates area.

Authoritative information on the process is published by the Supreme Court of Victoria, which maintains detailed guidance for personal representatives and the current forms and fees.

Before applying — assembling the application pack

A well-prepared application starts with the original will, the death certificate, identification for the executor and a schedule of assets and liabilities supported by statements from each institution. Where the will has been altered, stapled, or has anything unusual on its face, additional affidavit evidence is prepared to address the point. Anticipating the Probate Office's questions at the outset generally avoids requisitions and shortens the time from lodgement to grant.

Executor duties in the first weeks

In the weeks immediately after death, the executor's practical priorities are to secure the deceased's property, cancel or hold recurring services where appropriate, notify insurers of the change in occupancy status where a home is unoccupied, and collect information about assets and liabilities. Distributions should not be made until administration has progressed to a point where the executor has a clear picture of the estate and the family provision period has expired.

When professional assistance is worthwhile

Estates with real estate, business interests, self-managed superannuation funds, cross-border assets, or contested family provision issues almost always benefit from professional assistance. Executors who attempt to run these estates alone often find themselves personally exposed to complaints from beneficiaries when things do not go as planned.