Probate Applications

Who applies

The executor named in the will. Where more than one executor is appointed, they may apply together or one may take a grant with power reserved to the other. Where an executor has died, has renounced or cannot act, the position needs to be examined against the terms of the will.

Documents we prepare

• Originating motion for grant of probate.
• Affidavit of executor deposing to the will, death, assets and liabilities.
• Inventory of assets and liabilities as at date of death.
• The original will and, if separately signed, any codicil.
• Death certificate.
• Any evidence needed to explain irregularities in the will — for example, missing dates, alterations or a witness who cannot be identified.

Advertising

The intention to apply for a grant must be advertised on the Supreme Court's probate advertising system, typically at least 15 days before the application is filed. Advertising gives creditors and interested parties the chance to lodge caveats or notices.

Requisitions

The Probate Registry commonly raises requisitions where the application is incomplete, evidence is inadequate or the will has formal irregularities. Requisitions are answered by supplementary affidavit. Careful preparation of the initial application reduces requisitions and speeds the grant.

Special situations

• Informal wills. Where the document does not comply with the formal requirements of the Wills Act, an application can be made under section 9 for the court to admit it to probate. This is more involved and requires additional evidence.
• Missing original will. Where the original cannot be found, an application can be made for probate of a copy — but the court must be satisfied that the will was not revoked.
• Chain of executors. If the executor of the estate later dies without completing administration, their executor may be able to continue as executor by representation.

After the grant

The grant is a sealed order of the court that the executor uses to realise the assets. Banks, share registries, Land Use Victoria and aged-care providers all rely on it. Once the assets are called in and the debts are paid, the estate can be distributed in accordance with the will.

Eligibility and standing

A grant of probate is made to the executor named in the will. Where multiple executors are named, one or more may apply, with the others reserving their right to apply later. Where the executor does not wish to act, they can renounce probate, and the grant then passes to the alternative executor or, in defined circumstances, to someone entitled under the intestacy rules. Executors under a will made outside Victoria may need to reseal an overseas or interstate grant rather than apply for probate.

Advertising and lodgement

The Supreme Court of Victoria requires the intended application to be advertised on the probate register before lodgement, so that anyone who wishes to lodge a caveat has an opportunity to do so. The application itself consists of an originating motion, a supporting affidavit from the executor, the original will and any codicils, and an inventory of assets and liabilities. Each document must be prepared in the form prescribed by the Court's rules.

What the Probate Office looks for

• Correct execution of the will and any codicils.
• Consistency between the will, the identity of the executor and the affidavit.
• Any interlineations, alterations or attached items on the original will.
• An asset schedule that matches the supporting statements.
• Correct identification of the deceased's usual place of residence.

Where anything on the face of the will requires explanation — for example, staple marks, an alteration in a different hand, or an earlier will not obviously revoked — additional affidavit evidence is prepared to address the point. Anticipating these questions at the outset generally avoids requisitions from the Probate Office.

Time between lodgement and grant

The time between lodgement and grant varies with the volume of applications before the Probate Office and the completeness of the application. In our experience, well-prepared applications are typically granted within a matter of weeks, with more complex applications taking longer. The Probate Office publishes current processing information from time to time.

What happens after the grant

Once the grant is issued, certified copies are provided to banks, superannuation funds, share registries and Land Use Victoria to release or transfer assets. The executor is then in a position to collect the estate, pay creditors, lodge tax returns and distribute the residue. Executors are strongly advised not to distribute before the statutory period during which family provision claims may be made has expired.

When separate advice is required

Contested probate — allegations of lack of testamentary capacity, undue influence, or a later will — is a specialist litigation area. Family provision claims by eligible applicants are also litigation, and we advise executors to seek advice as soon as such a claim is foreshadowed.

Limitations of general information

The commentary on this page is general and does not apply to every estate. Advice should be sought before an application is lodged.