What is a Grant of Probate, and do I need one for every Victorian estate?

When a loved one passes away, dealing with their estate can be overwhelming, especially when you're not familiar with the legal processes involved. One such process is obtaining a Grant of Probate, which is often necessary but not always required. If you're considering consulting with probate lawyers in Melbourne, it's helpful to understand what a Grant of Probate is and when you might need one in Victoria.

Key Takeaways

• A Grant of Probate is an official document from the Supreme Court of Victoria that confirms an executor's authority to administer a deceased person's estate.
• Probate is typically required for property in the deceased's sole name, substantial bank accounts, and share portfolios.
• You may not need probate for jointly owned assets, small bank accounts, or assets with direct beneficiary nominations.
• The application process involves specific documentation and can be completed personally or with professional assistance.

What is a Grant of Probate?

Definition and Legal Effect

A Grant of Probate is an official court order from the Supreme Court of Victoria that confirms the validity of a deceased person's will and authorises the executor to collect and distribute the estate assets according to the will's instructions. It provides legal recognition that the named executor has the authority to act on behalf of the deceased's estate.

Who Issues It

In Victoria, the Probate Office of the Supreme Court is responsible for issuing Grants of Probate. This office reviews applications and supporting documentation to verify the will's validity and the executor's appointment before granting the legal authority to administer the estate.

Terminology

It's important to distinguish between related terms: ‘Probate' refers to the general process of proving a will's validity. A ‘Grant of Probate' is the actual document issued by the court. When there is no will, ‘Letters of Administration' is the equivalent document granted to the next of kin, allowing them to distribute assets according to intestacy laws.

When is a Grant of Probate Required in Victoria?

Common Situations That Usually Require Probate

Probate is typically required when the deceased owned:

• Real estate solely in their name
• Substantial funds in bank accounts (usually over institution-specific thresholds)
• Share portfolios or investments
• Assets that require formal transfer of ownership

Situations Where Courts Are Rarely Needed

You may not need probate when dealing with:

Assets held jointly with right of survivorship automatically pass to the surviving owner without requiring probate. Similarly, superannuation and life insurance policies with binding beneficiary nominations typically bypass the estate and probate process entirely.

Institutional Practices and Variations

Financial institutions in Victoria have varying policies regarding releasing funds without probate. Many banks have thresholds (often ranging from $50,000 to $100,000) below which they may release funds to the executor or next of kin without requiring a Grant of Probate, though proper identification and death certificates are still needed.

“Understanding whether probate is required for your specific situation can save considerable time and expense when administering an estate. Each case is unique, which is why seeking tailored advice is so valuable.” – Pearsons Lawyers

Who Can Apply for a Grant of Probate and What Documents Are Needed?

Eligible Applicants

The executor named in the will is the person entitled to apply for probate. If multiple executors are named, they can apply jointly or one can apply with the others' consent. If the named executor is unwilling or unable to act, substitute executors named in the will may apply.

Typical Documents

To apply for probate in Victoria, you'll need:

• The original will (and any codicils)
• A certified copy of the death certificate
• An affidavit of executor (sworn statement)
• Inventory of assets and liabilities
• List of beneficiaries

Additional Evidence That May Be Required

In some cases, additional documentation may be requested, such as evidence of the testator's identity, notices to creditors, or property title searches. If the will has unusual features or amendments, further evidence about its execution may be required.

How to Apply for Probate in Victoria

Pre-application Tasks

Before applying, you need to locate the original will, obtain certified copies of the death certificate, value the estate assets, and gather relevant documentation from financial institutions. This preparation phase is critical for a smooth application process.

Filing with the Supreme Court of Victoria

Applications can be lodged online through the Supreme Court's Probate Online system or in paper form. You'll need to complete the appropriate forms, prepare supporting affidavits, and pay the filing fee, which is based on the value of the estate.

After Filing

Once filed, the Probate Office reviews the application. If everything is in order, they issue the grant. If there are issues or questions, they may request additional information or clarification. Processing times vary depending on the complexity of the estate and the court's current workload.

Timeframes and Court Fees

Processing times generally range from 2-6 weeks for straightforward applications. Fees are calculated based on the gross value of the estate assets, with current fee schedules available on the Supreme Court of Victoria website.

When You May Not Need a Grant of Probate

Small Estates and Institution Thresholds

For smaller estates, probate may not be necessary. Many financial institutions have policies allowing the release of funds below certain thresholds without requiring a formal grant. These thresholds vary between institutions but typically range from $25,000 to $100,000.

Jointly Owned Assets and Beneficiary Nominations

Assets owned jointly as ‘joint tenants' automatically pass to the surviving owner(s) regardless of what the will says. Similarly, superannuation and insurance policies with valid beneficiary nominations typically bypass the estate entirely.

Alternatives When There Is No Will or Probate Is Not Appropriate

When there is no will, Letters of Administration serves a similar function to probate. For very small estates, some institutions offer informal release procedures with appropriate indemnities.

Conclusion

Understanding whether you need a Grant of Probate for a Victorian estate depends on the specific assets involved, their value, and how they were owned. While not every estate requires probate, it's often necessary for proper administration of significant assets. The process, while somewhat technical, can be managed either personally or with professional assistance. If you're dealing with a complex estate or are unsure about the requirements, seeking expert advice is advisable. Pearsons Lawyers can provide guidance tailored to your specific circumstances, helping you navigate the probate process efficiently and with confidence.