Obtaining probate is the first step when it comes to administering a deceased estate. Obtaining this legal right requires the executor to make an application with the Supreme Court of Victoria- involving multiple documents and a probate advertisement online. In this blog post, we provide relevant information for navigating this application process- easing stress, informing executors and ensuring the wishes of the deceased are carried through.
Executors are required to apply for a grant of probate, before they have the authority to begin administration of the deceased estate. This application process cannot begin without the original, valid Will and death certificate, so executors should not lodge a Notice of Intended Application without these.
In addition, the executor must contact financial institutions, service providers and government agencies to validate the estate's assets. Copies of death certificates for any beneficiaries named in the Will who have predeceased the deceased may also be required, as well as birth certificates for any of their surviving children.
The probate online advertising system allows you to publicise your intention to apply for a Grant of Probate to begin administration on the last Will left by the deceased person. These probate records further provide any creditors of the deceased person with an opportunity to make their claims on the estate known to the Executor.
The Notice is published on the Supreme Court of Victoria website. The fee for publishing the Notice is $24.00 (as at time of publication). You will need to enter all required information and provide your credit card details to pay for the Notice online, if you are publishing it yourself.
The relevant legislation requires that the Notice be published at least fourteen (14) days before an application for a Grant of Probate is made by the Executor.
Create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects.
Here are some examples of the details required for different types of assets you may come across:
Real estate – Address, Certificate of Title Folio Identifiers, and value as at date of death
Bank accounts – Bank name, branch, BSB, account number(s) and value as at date of death
Shares – Name of company, name of share registry, number of shares held at date of death and value as at date of death
This information is required for the Probate application and can take some time to collate. In Victoria, the Inventory of Assets and Liabilities must contain details of the deceased person's assets- held either solely, or as tenants in common.
In contrast, Jointly held liabilities (such as a home loan or mortgage held jointly with a spouse or de facto partner), are not required in the Inventory of Assets and Liabilities, alongside state expenses incurred after death, such as funeral and burial costs. All you need to include is:
Name of the creditor (whether it be a person or company)
The type of liability (i.e. mortgage, credit card debt, personal loan)
The value of the liability as at the date of death
The forms required for a valid standard Probate application in VIC are as follows:
Affidavit of Executor
Inventory of Assets and Liabilities
Certificates of Exhibits
In particular, you need to pay close attention to the Affidavit of Executor. When you sign an Affidavit, you are swearing or affirming the truth of its contents, so must carefully review and approve the document before signing it. If you do not agree with something in the Affidavit (or any of the documents), you should contact your solicitor to make amendments.
Only an authorised witness can witness you sign your Affidavit. Authorised witnesses include:
Justices of the Peace
Most errors with Probate applications arise in the signing of the documents because people do not follow the instructions provided, so it's important to read these properly.
The Safewill Legal team specialise in the preparation and signing of Probate applications, and can help ensure your application has been prepared and signed properly and in accordance with the relevant legislation and rules.
You must pay the correct filing fee when you lodge the documents, as this is calculated based on the value of the assets in the estate.
The scale of Probate filing fees in VIC (effective from 1 July 2021 to 30 June 2022) is as follows:
Value of assetsFiling feeLess than $500,000.00$63.10$500,000.00 or more but less than $1,000,000.00$338.20$1,000,000.00 or more but less than $2,000,000.00$631.30$2,000,000 or more but less than $3,000,000$1,382.80$3,000,000.00 or more$2,134.30
Your Probate application will not be processed until the filing fee is paid.
The filing fee is paid via PayPal through the VIC Supreme Court's RedCrest online Probate filing system.
Once the application has been signed, you need to scan and upload the signed application to RedCrest.
Once the application has been uploaded and the filing fee paid, RedCrest will automatically generate an Origination Motion, which you must print and post to the Victorian Supreme Court, alongside the original, valid Will and original Codicil(s) (if applicable) to the Victorian Supreme Court. We highly recommend posting with either registered or express post.
It normally takes the VIC Supreme Court 2-4 weeks to review the application and make a Grant of Probate for deceased estates.
If there are any issues with the application, or if further information is required, the court will send you a requisition. Whilst most of these can be resolved quickly, you may be required to share further information or documentation.
Once your application is approved by the supreme court, you will obtain a formal Grant of Probate in the form of an electronic PDF document. This starts with the ‘Probate Parchment', which includes a red seal on the front to mark the official seal of the court and Probate Registrar.
As the VIC Supreme Court no longer issues hard copy Grants, the electronic Grant you receive is the ‘original' document which you can share with asset holders via the matter number (shown on the top right-hand corner of the Grant, starting with S PRB) and the Unique Identifier number (shown bottom right-hand corner of the Grant).
In most situations, fulfilment of executor duties starts with opening up a bank account in the name of the Estate. Probate provides the legal document which grants this nominated person the authority to open these accounts.
As the accounts of the deceased are closed when this person dies, opening this new account allows you to channel funds from these original into the newly established one. This will assist with administration record-keeping- helping to ensure no funds are misappropriated for personal use (either by mistake or intentionally).
Depending on the assets of the estate, and how they are being dealt with in the administration of the estate, an estate tax return may be required for deceased estates. An Accountant may be required to determine this, as well as prepare the relevant paperwork for lodgement with the Australian Tax Office.
The executor is responsible for arranging the payment of outstanding funeral and estate expenses, as well as any outstanding debts or liabilities of the deceased (including tax liabilities). These amounts can be paid from the estate bank account.
It is important to note that all liabilities and estate expenses must be paid before funds can be distributed to beneficiaries.
In Victoria, it is highly recommended that you do not distribute any estate assets to beneficiaries until the expiration of six (6) months from the Grant of Probate. During this period, creditors of the estate or eligible persons who wish to commence a family provision claim, should come forward.
If this six (6) month period is not observed, and an Executor distributes the estate too early, they may be personally liable to satisfy any outstanding estate liabilities and debts.
Once the six (6) month period has expired, all liabilities and estate expenses have been paid (and on the assumption no creditors have come forward, and no one has commenced a family provision claim), you may arrange to distribute the residuary estate to the beneficiaries named in the Will.
If there is an estate property to be transferred to a beneficiary (or beneficiaries), you will need to engage a property lawyer or conveyancer to complete the relevant transfer paperwork. Alternatively, it may be that you and/or the beneficiaries decide that the property should be sold. In this case, the proceeds of sale of the property would be distributed to beneficiaries in accordance with the Will.
Depending on the assets of the estate, there may be a need to engage other professionals to assist you in dealing with and distributing the assets of the estate. If you are unsure of any aspect of administering the estate, it is best to obtain legal advice.
Once probate is granted, liabilities paid, and all assets of the estate have been distributed, your role as Executor will cease. However, it is important that you retain all documents and information relating to your administration of the estate somewhere safe in case they are ever required again.
Safewill provides an affordable, flexible service to help you navigate probate records and ensure your supreme court application is valid first time. This offers you the benefit of a solicitor, without the hefty price tag.
Ease your probate or letters of administration process today, by calling 1300 942 586 or via livechat now