Probate in Victoria: An Executor's Practical Guide

What is probate?

Probate is a grant made by the Supreme Court of Victoria that authenticates the deceased's last will and confirms the executor's authority to collect and deal with the estate. Once the grant has been made, asset holders — banks, share registries, Land Use Victoria — will act on the executor's instructions to release or transfer assets in accordance with the will.

When probate is required

Not every estate needs probate. Assets held jointly with a surviving owner pass by survivorship; superannuation is usually paid by the fund trustee directly; small bank balances may be released on statutory declaration. Probate is typically required where the deceased held real estate in their sole name, held bank or share balances above the institution's threshold, or where a solvent claim has been foreshadowed against the estate.

Preparing the application

A Victorian probate application is made to the Probate Office of the Supreme Court and requires the original will (with any codicils), the death certificate, and an inventory of assets and liabilities as at the date of death. Before filing, the executor must also publish an online notice of intention to apply on the Court's website and allow the prescribed period to elapse.

If the will is unusual — an informal document, a will signed in suspicious circumstances, or one where the attesting witnesses cannot be located — the Registrar may require additional evidence (an affidavit of due execution, affidavit of plight and condition, or an application in solemn form).

Timeframes

A straightforward, unopposed application typically issues within four to eight weeks of filing, though this varies with Court workload. Applications involving requisitions from the Registrar, missing witnesses or informal wills take longer. Where a family provision claim is foreshadowed, an executor should not distribute the estate for at least six months from the date of the grant to preserve the statutory claim window under Part IV of the Administration and Probate Act 1958 (Vic).

What the executor does after the grant

• Collects estate assets and closes accounts.
• Pays the deceased's debts, funeral expenses and tax.
• Advertises for creditors under section 33 of the Trustee Act 1958 (Vic) where appropriate.
• Prepares interim accounts and, where required, final estate accounts.
• Distributes the residue in accordance with the will.

Executors owe fiduciary duties to the estate as a whole. Personal liability can arise where an executor distributes prematurely, fails to obtain probate where required, or acts inconsistently with the terms of the will.

Common problems

Recurring issues include: the original will cannot be found; an executor named in the will predeceased the testator or is unwilling to act; joint accounts are frozen pending grant; a foreign asset requires resealing overseas; or a beneficiary threatens a family provision claim. Each has an established procedural response, but the right response depends on the specific facts.

How Hanlons can help

Hanlons acts for Victorian executors in estates of all sizes, from single-asset probates through to complex estates with real estate, private company shares and superannuation death benefits. We handle the Supreme Court application, the correspondence with asset holders, the estate accounts and, where a dispute arises, the defence of the estate. For an overview of our practice see probate and deceased estates, and for planning that reduces the burden on future executors, wills and estate planning.