A Grant of Probate is a document issued by the Supreme Court as evidence that an Executor has ‘proven’ a Will by completing a Probate Application with the Court. This document (which includes a copy of the Will) allows the Executor to deal with the Deceased’s assets as if they were the deceased and distribute the assets in accordance with the Deceased’s Will.
An application for Grant of Probate comprises of (at least):

• An advertisement posted on the Supreme Court Website (14 days before making the application);
• An Affidavit by the Applicant including details of the Deceased and their Estate;
• The Original Will of the Deceased and any Codicils; and
• An inventory of Assets and Liabilities that the Deceased had at the time of their Death.

From 1 July 2020, Grants of Representation are now issued electronically.

What if there is no Will?

If there is no will it is usually necessary to apply to the Supreme Court for a document called “Letters of Administration”. This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an Executor, but called an Administrator.

As a general rule, the person applying to be the Administrator of the Estate must be the spouse of the Deceased or nearest next of kin (or otherwise be able to prove a substantial interest in the Estate).  Letters of Administration allows the Administrator to deal with the Deceased’s assets as if they were the deceased and distribute the assets in accordance with the relevant legislation and the Common Law.

An application for Letters of Administration comprises of (at least):

·        An advertisement posted on the Supreme Court Website (14 days before making the application);

·        An Affidavit by the Applicant including details of the Deceased and their Estate;

·        An inventory of Assets and Liabilities that the Deceased had at the time of their Death.

On receipt of the Grant of Representation from the Supreme Court, it is necessary for the Executor (or Administrator) to call in and convert any assets and pay out any liabilities the deceased may have had at the time of the death. As a general rule the executors have one year from the grant of probate to administer the estate. After this time the beneficiaries of the estate may be entitled to claim interest from the executor on their entitlement.

Lower Value Estates:

It is not always necessary to apply for a grant of probate (or letters of administration). Where the major assets of the estate are held jointly with a surviving proprietor (usually a spouse) and the deceased’s bank accounts or other assets do not exceed approximately $30,000.00, it may be possible to administer the estate without obtaining a grant of representation. There are limitations on this.

For example certain financial institutions insist on a grant of representation being provided irrespective of the value of the accounts held with them. Another example is where the deceased held land solely in their own name. It is only possible to deal with the land once agreed representation has been received and can be provided to the land titles office and State revenue office in order to transfer the property.

If you believe that there is a possibility that a probate application may not be required, you should contact our office so that we can advise you appropriately.

Who/what is an Executor/Administrator?

An Executor is a person who has been appointed in a will to manage the will maker’s estate and carry out the will maker’s wishes set out in the will after she or he has died. An Administrator fulfils the same duties as an Executor where the person passed away without leaving a Will.

The Executor/Administrator is legally recognised as the Deceased’s legal representative and has temporary ownership of all of the Deceased’s property until the Estate is distributed.

An Executor can refuse to accept the position of Executor under a Will, but this should preferably be done before the Grant of Representation is made. If the Executor seeks to step down from that position after Grant is made, they must obtain the consent of the Supreme Court.

Executors/Administrators can delegate some of the actions and responsibilities to others, for example, funeral directors, lawyers, accountants and real estate agents. The Executor will be ultimately responsible for the actions of those people.

A Guide for Executors is available from the Legal Practitioner Liability Committee.

Should there be a reading of the Will?

Contrary to television, Will Readings in Australia as rare and usually the Executor or their solicitors will advise the beneficiaries of their entitlement under the Will.

In Victoria, there are various people who are entitled to a copy of the Will:

• any person named or referred to in the will, whether as beneficiary or not
• any person named or referred to in any earlier will as a beneficiary
• any spouse of the will maker at the date of the will maker’s death
• any domestic partner of the will maker
• any parent, guardian or children of the will maker
• any person who would be entitled to a share of the estate if the will maker had died without leaving a will;
• any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the will maker if the will maker had died without leaving a will; and
• any creditor or other person who has a claim at law or in equity against the estate of the will maker and who produces evidence of that claim.

A beneficiary has no legal right to see a will of a deceased person made before 20 July 1998. However, once the application is granted, a copy may be obtained from the Supreme Court.

How much does applying for a Grant of Representation Cost?

The initial out of pocket expenses of applying for a Grant can vary but are generally include:

• The cost of advertising the death on the Supreme Court website for 14 days                                       $23.60

• The Supreme Courts Fee depending on the value of the Estate                                                                $62.70 to $325.10

We generally charge for the initial application for a Grant of Representation under the Supreme Court Scale which is dependent on the overall value of the Estate. This means that the initial costs will almost always be (subject to alteration to the relevant legislation) $680.00 plus $35.00 for every additional $50,000.00 over $100,000.00 of the value of the Estate.

For example, if the total value of an Estate is $200,000.00, the legal costs of the application would be $680.00 plus $70.00 for a total of $750.00.

How much will administering the Estate Cost?

The full costs of administering an Estate are difficult to estimate at the outset of a matter. There may be incidental out of pocket expenses in relation outstanding accounts. In relation to our costs, after the initial application, these will be charged either on a time-basis cost or under the Practitioner Remuneration Order Scale. We will discuss this with you and provide our full cost disclosure as soon as the cost can be reasonably ascertained.

Who arranges the funeral?

In many cases, a Deceased will have already made arrangements for their preferred final resting place such as having put a funeral bond in place. In most other circumstances, they will have spelt out their wishes in their Will. The Executor should follow any directions left by the Deceased as to the funeral arrangements but are not legally bound to do so. The reasonable cost of the funeral is an expense of the estate, but the Executor should be careful not to incur expenses beyond the available funds in the estate.

You should be aware that it is usually the funeral director who makes an application to the Department of Births, Deaths and Marriages for a Death Certificate, which is required to be submitted to the Court as part of the application. This usually takes approximately 2 weeks from the date of the funeral or service. If for any reason you are unsure if a Certificate has been applied for, please contact our office as soon as possible.

Executor Expenses

Any expenses that you incur out of pocket will be reimbursed by the Estate, either once sufficient funds are available or on final distribution.

In addition to the reimbursement of expenses, Executors may be entitled to ‘commission’ for undertaking the role. This is capped at 5% of the total value Estate. If commission is not expressly referred to in the Will, it may be necessary to make an application to the Court. Executors wishing to receive a commission should keep extensive records of all they have done in their Executorial role to justify the commission.