Probate & Deceased Estates

Grant of probate versus letters of administration

A grant of probate is issued where the deceased left a valid will appointing an executor who is willing and able to act. A grant of letters of administration is issued where the deceased died without a valid will (intestate), or where there is a will but no executor able to act. Letters of administration with the will annexed apply where there is a will but no executor. The Supreme Court of Victoria administers all three.

When is a grant required?

Not every estate requires a grant. Small estates — where the deceased held only a modest bank balance and no real property in their sole name — can often be released to the executor or next of kin on statutory declaration alone, particularly where the total value is below the threshold each financial institution sets. Where the deceased held real property in their sole name, or where significant assets are held by a single institution, a grant is almost always required.

What we do for executors and administrators

1. Take instructions and locate the original will.
2. Notify beneficiaries in the standard form and answer initial enquiries.
3. Assemble the schedule of assets and liabilities as at date of death.
4. Prepare and file the application for grant with the Probate Office of the Supreme Court of Victoria.
5. Advertise the intention to apply, as required by the Probate rules.
6. Attend to requisitions raised by the Probate Registry.
7. Once granted, call in the assets, pay the debts and expenses of the estate, and distribute to the beneficiaries.
8. Prepare estate accounts and account to the beneficiaries.

Timeframes

Straightforward grants are usually issued within a few weeks of filing, subject to the current workload of the Probate Registry. From grant to final distribution, an uncontested estate can typically be wound up in six to twelve months. Estates with complex assets, overseas beneficiaries or family provision claims take longer.

Family provision claims

Under Part IV of the Administration and Probate Act 1958(Vic), eligible persons — including a spouse, domestic partner, child (in some circumstances) and dependant — may apply to the Supreme Court for a family provision order if the deceased failed to make adequate provision for their proper maintenance and support. Time limits apply. Executors should not distribute the estate in the face of a threatened or foreshadowed claim without legal advice.

Sensitivity

Estates are emotional as well as legal. We keep executors informed at each step, correspond with beneficiaries directly where instructed, and try to make an inevitably difficult period as manageable as possible.

When a grant is required

A grant of representation — probate where there is a will, letters of administration where there is not — is required in Victoria before certain assets can be dealt with. Typical thresholds are set by the asset holders rather than by legislation: banks, superannuation funds and share registries each have their own limits above which they require a grant. Land held solely in the deceased's name almost always requires a grant to transfer or sell. Jointly held property passing by survivorship does not require a grant.

Documents and information required

• The original will and any codicils, or evidence that no will exists.
• The certified death certificate issued by Births Deaths and Marriages Victoria.
• Identification for the executor or proposed administrator.
• A schedule of assets and liabilities as at date of death, with supporting statements from banks, superannuation funds, share registries and Land Use Victoria.
• Details of the deceased's usual place of residence.

Typical sequence of an estate

1. Initial meeting and review of the will and asset schedule.
2. Advertising the intended application on the Supreme Court's probate register.
3. Preparing the application and supporting affidavits.
4. Lodging the application with the Probate Office.
5. Receiving the grant and providing certified copies to asset holders.
6. Collecting assets, paying debts, and lodging the deceased's final tax return.
7. Preparing estate accounts and distributing the residue in accordance with the will.

Common issues that delay estates

The Probate Office frequently issues requisitions where the application is missing information, the will is not properly executed, an executor cannot be located, or the asset schedule is inconsistent with the supporting evidence. Careful preparation of the application at the outset generally avoids these requisitions and shortens the time from lodgement to grant.

Tax and separate advice

The deceased's final individual tax return and any estate income tax returns are typically prepared by the deceased's accountant. We coordinate with the accountant on the timing of asset realisations, capital gains events, and distributions, but we do not provide taxation advice.

Limitations of general information

Every estate has particular facts. This page is a general introduction and is not a substitute for advice on the estate you are administering.