Probate and Grants of Representation
Probate and Grants of Representation
Considerately Guiding You at Every Step
Probate of Will, Victoria
Coming to terms with the loss of a loved one is hard — circumstances made even more emotionally challenging if you’re responsible for attending to the deceased’s assets. But, before you can begin this task, you may have to go through the Probate process.
At Bayside Wills and Estates Lawyers, we fully understand the added burden of navigating important legal requirements during this difficult time. Our experienced team is here to give you compassionate and expert guidance through the Probate procedure and obtaining a Grant of Representation in Victoria.
Probate Explained
When someone dies in Victoria — and they pass with assets in their name — a legal process known as Probate must often be followed.
This court procedure verifies that the Will is valid, and that the Executor — the person named by the deceased as responsible for managing the assets — has the authority to deal with the relevant stakeholders. That is, they are allowed to talk to banks, the Australian Taxation Office (ATO), financial institutions, and other parties to gather the assets before distribution to the beneficiaries.
As long as the court is satisfied that the Will is legal, they issue a Grant of Probate (Grant of Representation). The Executor must show this document to the applicable institutions, who can then release assets to them.
Confused About the Meaning of Probate? Speak to Bayside Wills and Estates Lawyers NOW
Do All Wills Have To Go Through Probate in Australia?
Although Probate is common in estate administration, it’s not always needed in Victoria:
When Probate of Will Is Typically Required
- Property ownership — if the deceased owned real estate in their sole name, Probate is virtually always needed to move ownership to beneficiaries.
- Large bank accounts — usually, banks require a Grant of Probate to release funds if the amount exceeds $50k, although it can differ between institutions.
- Substantial shares — share registries often need a Grant of Probate before the Executors can sell or distribute the deceased’s shares.
- Disputes — if there’s a high chance family members or creditors may mount a contest or challenge to the Will, Probate can provide some safeguards for the Executor against legal action.
When Probate Is Not Typically Required
- Smaller estates — if the deceased’s assets are low in value and easily transferable, Probate might not be needed.
- Joint assets — anything held with another person (like a joint bank account) may sometimes pass to the remaining owner without a Grant of Probate.
- No expected complications — if there aren’t any anticipated challenges from creditors or a family dispute, Probate might be unnecessary.
Should You Go Through the Probate Process?
Even if a Grant of Probate isn’t technically required, if you’re the Executor of the Will, there are times when applying for Probate can be beneficial. It provides you with undeniable legal authority and can simplify your interactions with banks, institutions, and other parties holding the deceased’s assets — especially if unforeseen issues arise.
In all circumstances, if you’re the Executor, it’s crucial you speak to a Probate solicitor. At Bayside Wills and Estates Lawyers, we can explore your specific circumstances, and give you considerate and understanding advice applicable to your situation.
Whose Responsibility Is It for Applying for Probate?
After a death in Victoria, the Executor named in the Will, or the next of kin, may apply for a Grant of Probate or Grant of Letters of Administration (in case there is no Will).
When There Is a Last Will and Testament
The Executor has a legal requirement to carry out the wishes stated in the deceased’s Will — and applying for a Grant of Probate is often the first necessary step.
Points to remember about Executor responsibility:
- Named by the deceased — the Executor is appointed by the Will-maker to manage their estate after their death.
- Legal duty — the Executor has a requirement in law to apply for Probate if it’s needed to organise the estate.
- More than one Executor — if the Will appoints numerous Executors, they must act together in the Probate process.
- Renunciation — an Executor can choose to give up their role, and not pursue Probate, if they’re incapable or unwilling to fulfil their duties.
When There Is No Last Will and Testament
Should the deceased person die without a Will (dying intestate), or the Will cannot be found, there will not be a named Executor. An administrator must, therefore, be appointed — a kind of proxy Executor — to manage the assets. In most circumstances, this will be the next of kin.
The nominated administrator can then make an application for Letters of Administration. The LOA fulfils the same purpose as a Grant of Probate, which will permit them to access the deceased’s assets held by institutions.
Wondering Whether To Apply for Probate or Letters of Administration?
Time Limits on Probate
Section 15 of the Administration and Probate Act (1958 Vic) states that the court has the authority to summon an Executor who hasn’t applied for Probate within six weeks of the deceased’s passing.
But in reality, this isn’t commonly enforced.
That said, if you’re the Executor, you should distribute the estate’s assets inside one year of the Will-maker’s death — usually referred to as the Executor’s Year. However, the likelihood of this happening can depend on the estate’s complexity. If a year passes without the beneficiaries receiving their entitlements, they might be eligible for interest.
Delaying the Probate May Cause Problems
- Asset values may fluctuate — investments and property might change in value, making it difficult to manage and distribute the estate.
- Problems finding beneficiaries — inheritors can move homes, making it challenging to locate them as the years pass.
- Increased chance of disputes — delays elevate the chances of arguments from creditors or beneficiaries.Â
- Executor liability — the Executor could be looking at personal liability for any losses incurred due to their inactivity or laziness.
- Tax consequences — the Estate may be liable for higher taxes if not managed promptly.
It’s important to start the Probate process promptly. As expert inheritance lawyers, Bayside Wills and Estates will guide you efficiently through the required steps without delay.
How Long Does Probate Take in Victoria?
The time taken to receive a Grant of Probate depends on several factors — mainly how complex the estate is, and whether the necessary Probate documents are completed promptly. Generally, once the Supreme Court of Victoria receives an accurate application, it takes about one to four weeks for Probate to be granted by the court.
Matters That May Cause a Delay
What Is the Wills and Probate Process?
Applying for Probate in Victoria entails a complicated, time-consuming process with specific requirements and documentation. This procedure must be completed accurately to avoid unnecessary delays — the reason why most people use expert Probate solicitors.
The Probate Steps
1
Check that you meet the requirements
You must be 18 years or older, be appointed as the Executor in the Will, and furthermore, be capable and willing to attend to the Probate duties.
2
Publish Probate Notices of Intention
You must state that you plan to request Probate by using the Probate Online Advertising System (POAS). It allows the public to see your intention and allows others to raise any objections.
3
Advertisement period
You must wait 14 days after publication before applying for Probate.
4
Prepare necessary documentation
This can include a certified copy of the death certificate, the original Will, and an affidavit stating the assets and liabilities in the estate.
5
Prepare the affidavit
This must be witnessed by a notary, lawyer, or court registrar.
6
Make an online application
Through the Supreme Court of Victoria’s Probate online portal and complete the application form.
7
Submit the application
Together with the affidavit and all supporting documents.
8
Mail original Documents to the Supreme Court of Victoria.
9
Address any court demands
Respond quickly to their requests if the court asks for more detail or clarification.
10
Receive the Grant of Probate
Once you receive the Grant, you can then proceed to manage, collate, and distribute the estate’s assets.
Why You Need a Probate Lawyer To Apply for a Grant of Representation
You could attempt to complete the entire probate application process alone — but this can be a risky course of action. If you make mistakes in the application, fail to submit the correct documents, or misunderstand court requests — you are leaving yourself open to delays, complications, and unnecessary stress:
At Bayside Wills and Estates Lawyers, our experienced team of Wills and Probate lawyers provides expert guidance and support during the entire process. We’ll ensure your application is accurate, complete, and submitted promptly — minimising the risk of delays.
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The Next Step After the Court Has Granted Probate
After you receive the Grant of Probate, as the Executor, you may begin assembling and distributing the assets to beneficiaries.
However, it’s recommended that you don’t allocate any inheritances until six months have elapsed after the Grant of Probate. This allows enough time for interested parties to make a claim on the estate — such as dependents making a Family Provision claim, or creditors chasing debt payment.
If you don’t wait for this six-month period to run — and distribute the estate too quickly — you might find yourself personally liable for outstanding debts and liabilities.
To learn more, check out our pages on Deceased Estate Administration and the duties of Executors.
Want Help in Your Executor Duties? Speak to Bayside Wills and Estates Lawyers TODAY
Probate Fees in Victoria
When applying for Probate, some statutory costs are involved — depending on how complex the estate and its assets are. Furthermore, there may be some deceased estate lawyer’s fees — if you engage a legal professional. In most cases, you can claim reasonable costs required for Probate from the estate itself.
Common Probate Costs
- Advertising fee — you must pay a fee to the Supreme Court of Victoria in order to publish your Notice of Intention for applying for Probate.
- Filing costs — when you file the Probate application, you must pay a fee. Usually, the amount depends on the total estate value.
- Certification fees — arranging certified copies of the Grant of Probate and death certificate can cost money.
- Executor costs — you, as the Executor, are entitled to be reimbursed if you pay any estate costs from your own pocket. You may also be allowed to claim Executor’s Commission (no more than five percent of the gross estate value) to pay for your time and effort.
Navigate Probate With Compassionate Guidance
Losing a family member or loved one is never easy. If you’re also nominated as the Executor, this can significantly add to your emotional burden and stress.
At Bayside Wills and Estates Lawyers, we provide compassionate, considerate and expert guidance at every step of the entire Probate process. It’s our aim to ensure the Probate application is smooth — resulting in a prompt issue of the Grant of Probate.
We Support You By:
 Explaining the Probate process — in terms you understand.
 Giving Executor guidance — informing you of your duties, responsibilities, and time-frames.
 Checking on Probate requirements — advising if you need Probate in your circumstances.
 Preparing and filing all Probate documentation — accurately and promptly.
Assisting in information gathering — needed for efficient asset distribution.
Ongoing support and advice — before, during, and after the Probate process.
Giving reassurance — for you and your loved ones.
 Understanding your feelings — considerate advice during a delicate time.
Probate Process FAQs
The length of time for the probate process to be completed depends upon how complex the estate is. Your lawyer can advise on how long it is likely to take. Remember, that timely and efficient submission of the correct documents to the court can ensure there are no unnecessary delays.
Probate may not be required if:
- The estate is small and valued below a particular level — depending on the state.
- There are jointly-owned assets that can automatically pass to the surviving owner.Â
- Where there are no anticipated disputes or conflicts over the assets.
It’s essential you seek legal advice to discover whether you need to go through the Probate process.Â
The Notice of Intention to Apply for Probate is a public statement that you’re intending to apply for a Grant of Probate. It’s published online.
There is a Probate Registry in every Australian jurisdiction. It is the only authority that can issue a Grant of Probate — a legal document that allows an executor to deal with a deceased’s estate.Â
Although Probate is a process that occurs in each state and territory, there are different rules, processes, and laws that manage Probate across the country.Â
Across Australia, the term Probate refers to the court stating that a Will is valid — allowing the Executor to proceed with managing and allocating the estate.
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