Death can be an overwhelming time for family members, particularly for those who are the Executor(s) named in the Will. If you have not previously experienced the Probate process, you may feel confused about where to begin. In this blog post, we will break down the Probate process into its various stages. Whilst some aspects of the process are straightforward, our assistance will not only streamline the process, assist in the avoidance of any hidden traps but also act as a “cushion” in what is often a highly charged emotional time where disputes may arise (which are, contrary to public belief, rarely about the money!).

While this blog post will refer to the process for obtaining a Grant of Probate where the Deceased has left a valid Will the steps are largely the same for someone who has died intestate (without a Will) or with an invalid Will where in both circumstances “Letters of Administration” are sought so that someone is appointed to be able to act on behalf of the Deceased’s estate.

Did you know: there is no legal reason for a ‘reading of the Will’ in Victoria like you may have seen in the movies unless the beneficiaries so decide. Anyone named in the Will of the Deceased (or in any previous Will) or who had a relationship which is captured in the relevant legislation (e.g. any child of the Deceased even if not mentioned in the Will) has the right to request a copy.

Step One: Gather the required documents

To be able to submit a Probate application, the original Will of the Deceased is required. If the Will is in the possession of a different solicitor to the one the Executors propose to use, or even if they propose to make their own application, the Executors must request the delivery of the Will and any Codicils that the Deceased made subsequent to the Will. These documents must be submitted as original signed hard copies to the Probate Office.

While you do not need to submit the original death certificate to the Probate Office, a certified copy must form part of the application. This must be the final death certificate, so in some circumstances you may need to wait until the cause of death is determined and the final certificate sent to the nominated next of kin.

Step Two: Advertise that a grant of Probate is to be applied for

All applications for Probate must be advertised on the Supreme Court website. These advertisements give others notice that the Executor(s) intend to make the application, which is important if there are family members who may wish to make a claim on the Estate or if someone is aware of the existence of a more recent Will.

There is a small fee associated with the advertisement and a specific formula which the advertisement should follow. If appointed to act we attend to all of the required steps including preparing and lodging the advertisement on the Supreme Court system.  The application for Probate cannot be lodged until fourteen days after the advertisement has been published.

Step Three: Affidavit of Executor(s) and Inventory of Assets and Liabilities

The Affidavit explains who you are as the Executor and establishes your authority to apply for Probate. The Inventory includes a list of assets and liabilities of the Deceased as at the date of death, including personal property and real property (i.e. land) and assets both in Victoria and in other jurisdictions.

For some Estates, these documents will be very straightforward; however, there can be traps that arise with which we are familiar in dealing with such as:

  • If an Executor does not wish to act, they may renounce their role, which involves a separate Affidavit (This should be done before they have commenced to act otherwise leave of the Court will be required to cease acting);
  • If the Will of the Deceased is deficient in some way, such as where it bears staple or paperclip marks, if it has been signed and witnessed with different pens, or where it is not correctly dated, an Affidavit of Due Execution will likely be required to overcome these anomalies;
  • In applications for Letters of Administration, i.e. where there is no Will, the applicant may be required by the Court to provide additional evidence to prove that they are the best person to make the application (e.g. death certificates for any closer relations of the Deceased);
  • The Deceased may have mistakenly believed that assets controlled by them during their lifetime formed part of their Estate and referred to such assets in their Will (such as superannuation member death benefits or assets owned by a company which they controlled). Although mentioned in the Will, these assets should not be included in the Inventory (see our post on the ‘silo’ theory for greater detail); and
  • The assets in the Estate must be valued and described correctly in the Inventory, including identifying the locations where shares and bank accounts are held. This may be overlooked by Executors who believe that all the shares and accounts of the Deceased are held where the Deceased lived (i.e. in Victoria).

Our assistance doesn’t end with the document preparation and the other matters to which reference has been made – we also assist by witnessing the signing of the Affidavit and its annexures. There are strict legal requirements for the signing of Affidavits which you must ensure that you meet, otherwise the application will be rejected and it will be necessary to re-submit a corrected set of documents.

Once complete we will use the RedCrest online system to lodge the application and post the original Will (and any Codicils) to the Probate Office.

Step Four: Respond to any requests for further information

Thanks to the RedCrest system, applications for Probate are granted much more quickly than when the system was purely hard copy. There are times, however, where the Probate Office will make a request for further information (also known as a ‘requisition’). Common reasons for making a request for further information are:

  • The cause of death on the death certificate (e.g. “Dementia – 2 years”) has caused the Probate Office to question whether the Deceased had the capacity to make their Will. In such circumstances, an Affidavit from a treating practitioner is usually required or other proof of the Deceased’s capacity to understand to whom they were leaving their “bounty”;
  • In some circumstances, the Probate Office will require an affidavit from an Administrator in a Letters of Administration application undertaking to submit the accounts of the Estate to the Submit Court on a pre-determined basis in the future; or
  • The Probate Office requires an Affidavit of Due Execution for one of the reasons listed in Step Three above.

Again, when responding to these requests a precisely drafted Affidavit will expedite the obtaining of the Grant.

Step Five: Administer the Estate

Once the Grant is made the Executor can commence the administration of the Estate of the Deceased. They will have the authority to call in the assets of the Estate (e.g. by selling property) and to meet any outstanding liabilities, such as the repayment of any outstanding loans. Executors should also consider any tax issues that must be dealt with by the Estate, as detailed in this blog post.

The Executor can also distribute the Estate after six months from the Grant, when the time for any family members to make a claim for further provision has expired. Executors should also consider publishing a notice to creditors in local newspapers to ensure that any outstanding debts are paid before distribution.

The process of applying for a Grant of Probate may be intimidating, especially when you are dealing with the loss of a loved one. By breaking it down into these steps, however, and with our assistance, the burden will be eased if not completely dissipated.

We have had great success with applications for Probate and Letters of Administration in complicated and unusual circumstances so please contact us today to arrange a no-obligation meeting or videoconference to discuss your Probate matter.