Probate is a court order that proves the Will of a deceased person. It confirms the executor’s authority and allows them to deal with the estate.
The executor acts as the legal personal representative. They identify assets and debts, contact creditors and beneficiaries, and manage the sale, transfer, and distribution of estate assets. They then finalise the estate according to the Will.
An executor usually works with a lawyer. Legal advice helps reduce risk and manage claims or complications.
If there is no valid Will, or the named executor cannot act, an interested person can apply for letters of administration. This is usually a spouse, partner, or adult child.
This article explains how probate works when a valid Will exists and outlines the estate administration process.
Is a Grant of Probate Necessary?
A grant of probate is not always required. Small estates may not need it.
Jointly owned property usually transfers directly to the surviving owner. This is done by lodging the required documents with the relevant authority.
Banks and financial institutions may release small amounts without probate. They usually require a death certificate, proof of entitlement, and an indemnity.
However, probate is required to transfer real estate that is not held as a joint tenancy.
Most executors apply for probate unless the estate is small and simple or there is a low risk of claims.
Process
If an executor delays more than three years after death, the Court will require an explanation.
The executor must publish a notice of intended application. This must appear at least 14 days before filing the application.
The notice alerts creditors and potential claimants. It gives them a chance to raise any objections or claims.
The following documents are filed with the Court:
- Originating Motion for Grant of Probate
- Affidavit of Publication and Searches
- Copy of the advertisement
- Affidavit of Executor, including the Will, death certificate, and inventory of assets and liabilities
The executor’s affidavit confirms the relationship to the deceased and identifies the Will and death certificate. It may also explain issues such as name variations or missing beneficiaries.
Additional documents may be required in complex cases. A probate lawyer can assist with this process.
Once the Court grants probate, the executor can begin administering the estate.
If assets are located outside Victoria, the executor must reseal the grant in that jurisdiction before dealing with those assets.
Protecting Executors
Executors can be held liable if they act negligently or delay administration. They must also consider all potential claims before distributing assets.
To reduce risk, executors publish a notice to allow creditors to make claims within a set period before distribution.
Executors must also consider family provision claims. In many cases, they wait six months after probate before distributing assets.
A lawyer can advise executors on how to manage and reduce personal risk.
Administering the Estate
The executor must interpret the Will correctly and follow its terms. A lawyer can help clarify any unclear provisions.
Executors and beneficiaries should seek advice on tax and financial matters. These may include stamp duty, capital gains tax, and land tax.
Executors must protect estate assets and ensure appropriate insurance remains in place.
If the estate includes a business, the executor may need to sell, transfer, or wind it up.
Before distributing assets, the executor must ensure the following:
- All debts are identified and paid in the correct order
- Funds are reserved for taxes and future expenses
- All beneficiaries are identified and minor beneficiaries are protected
- Creditors have had time to make claims
- A distribution plan is prepared and approved
- Beneficiaries arrange insurance for transferred assets
Key considerations
Probate and estate administration are important legal processes. They can feel complex and time-consuming for executors and beneficiaries.
These processes protect all parties and ensure the Will is properly carried out.
If you need advice, contact us on (03) 9422 5439 or email [email protected]. Our Warrnambool lawyers and South Morang lawyers are here to help.