What is Probate
Probate is the legal process involved in confirming that a Will is valid. In Victoria, the application for a Grant of Probate is lodged with the Supreme Court of Victoria. The application includes the original Will and a certified copy of the death certificate, as well as an Inventory of assets and liabilities of the deceased at the time of their death and various other documents.
Why do I need Probate
You don't always need to get a Grant of Probate. In general, the Grant of Probate provided by the Court is required by organisations dealing with assets of financial significance, such as real property (a home), an aged care refund, bank accounts or shares generally valued at over
$30,000 - $50,000 (each financial institution has their own threshold).
If assets are held in joint names, the death certificate is all you need to be able to transfer the asset to the name of the surviving joint owner.
If there are assets in the sole name of the deceased, but no financial institution requires a Grant of Probate before allowing you to deal with the assets, then you don't need to apply for the Grant. For example, if there was a bank account containing, say $12,000, the bank is likely to accept a certified copy of the death certificate and Will, along with its' own forms, to close the account and pay the proceeds to the Estate, without requiring a Grant of Probate.
The reason Probate is often required when you are trying to deal with assets over a particular value is to offer protection to the relevant financial institution. People may make multiple Wills during their lifetime, and this can be an issue if the financial institution release funds without requiring Probate. Consider this example:
Ned passes away, leaving 2 children who don't get along with each other. Ned made a Will in 2005 naming his daughter Penny as the Executor, and gave her a copy. When Ned passes away, Penny takes the Will and a certified copy of the death certificate into Ned's bank and completes all the documentation to close Ned's account and distribute the balance of the funds into an Estate account in Penny's control (as the Executor).
A week after the bank has closed the account and released the funds to Penny, Ned's son Xavier writes to the bank, enclosing a certified copy of Ned's Will dated 2008, which appoints Xavier as the executor. Xavier asks that Ned's account be closed and the funds transferred in accordance with his instructions.
In this scenario, the bank has dealt with the deceased's account in accordance with a Will, on instructions of the Executor named in the Will. The bank is not notified that there was a later Will, which revoked the 2005 Will, until after the funds have already been paid out. Clearly, this would result in a very unhappy Xavier, who may take issue with the bank.
By requiring a Grant of Probate, the bank (or Land Titles Office, share registry, aged care facility, etc.) can rely on a process having been already undertaken to confirm that the Will being presented is the most recent Will, and the person they are taking instructions from is the Executor authorised by the Court.
I can't find a Will. Can I still get Probate?
Probate is the name for what is essentially proving a Will is valid, and is the most recent valid Will made before the testator died.
If there is no Will, then there is a very similar process required in order to confirm the person or people who have authority to administer the Estate. Where there are assets of financial significance, this also involves an application to the Supreme Court, but this application is called an application for Letters of Administration.
Who should I appoint as my Executor?
The Executor is responsible for identifying the assets of the Estate, and transferring them to the beneficiaries. The Executor has many responsibilities, and is wise to discuss the details of the role and obligations with a lawyer. For more information, see our Probate Guidance Fee Structure as at 1 July 2020 which contains some details of the Executor's role.
How long does it take for a Grant of Probate in Victoria?
After a person dies, the first step in the estate administration process is the application for a death certificate. As a general guide, this may take between 1-6 weeks to be issued by Births, Deaths & Marriages – longer if a Coroner's Report is required.
Once the death certificate has been issued, an application can be made for a Grant of Probate (or Letters of Administration). This application is reviewed by the probate office at the Supreme Court, and may take around 3-4 weeks in most cases before the application is granted.
Does Victoria have death duties?
There are currently no death duties payable in Victoria. However, there is a fee payable to the Court when an application for a Grant of Probate or Letters of Administration is lodged, and this fee is based on the value of the Estate. For more information, refer to the Probate Lodging Fees.
It is also worthwhile considering that superannuation death benefits may be taxable after your death if they are paid to a person who does not qualify as a tax dependant. In general terms, a tax dependent is a spouse or domestic partner, minor children, financial dependent or interdependent. Speak with a financial adviser, accountant, or lawyer for more information about who qualifies to receive superannuation death benefits tax-free, and the tax rates on superannuation death benefits for other beneficiaries.
Can an Executor named in a Will get paid in Victoria?
Anyone can make or change their Will provided they understand:
- a) There is provision in the Will allowing for the payment of the Executor; or;
- b) All of the beneficiaries of the Estate agree to the payment; or;
- c) The Court agrees to the payment, on the basis of the Executor Commission provisions of section 65 the Administration and Probate Act 1958 (Vic).
It is important to note that this provision allows for up to 5% of the assets to be paid to the Executor as commission, although the award may be less than this, depending on the work involved in the administration of the Estate.
Executors are not allowed to decide to take a commission or payment without one of the above provisions being satisfied.
Can an Executor be a Beneficiary?
Yes, there is nothing precluding an Executor of the Will from also being named as a Beneficiary of the Will. If a person is the only intended beneficiary, then it is often a good idea to make them the Executor as well.
It is important to carefully consider whether the Executor is likely to have a conflict of interest with any of the other beneficiaries. For example, in a blended family scenario, if the testator left their home to their second partner for their lifetime, with a requirement that the property must ultimately pass to a child or children, making the partner or the child the sole Executor may be the source of conflict, as the interests of the beneficiaries are not aligned, and the Estate is likely to continue in administration for a lengthy timeframe.
If a Will nominates an Executor who does have a conflict of interest with one or more of the other beneficiaries, they can still take on the role of the Executor, but they will need to give careful consideration to any decisions they are making about the management of the Estate assets, to make sure they are acting in a balanced manner between the beneficiaries.
I am a beneficiary of a Will, and the Executor doesn't seem to be doing anything. What can I do?
It is important to understand that the administration of an Estate can take a lot longer than most people think. In most cases, the beneficiaries will not receive their inheritance for 9-12 months after a person has passed away. If there is a challenge to the Will, it can take even longer than this.
However, in some cases the Executor's failure to act can be unreasonably delayed. In general, if an Executor has not brought an application for a Grant of Probate within six months after the death, they may need to provide an explanation, or risk being removed on the basis that they have demonstrated an unwillingness to act.
If an Executor obtains a Grant of Probate, and then fails to deal with the Estate, they will need to justify any excessive or unreasonable delays.
It may be helpful to get specific legal advice about this, as the timeframes are fairly flexible, and depend on the circumstances of the Estate.
I think I may be a beneficiary of a Will. Am I allowed to get a copy?
Section 50 of the Wills Act (Vic) 1997 provides the following people with a right to see the last Will of the deceased:
- a) any person named or referred to in the will (whether as a beneficiary or not);
- b) any person named or referred to in any earlier will as a beneficiary;
- c) any spouse of the testator at the date of the testator's death;
- d) any domestic partner of the testator;
- e) any parent, guardian or children of the deceased person;
- f) any person who would be entitled to a share of the estate if the deceased person had died intestate;
- g) 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 testator if the testator had died intestate; or
- h) any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.
We can't find a Will. What do we do?
The first thing to do is to seek advice from a lawyer who is experienced with estate administration. You will need to identify who has the authority to administer the Estate. This person, or these people, will be called the Administrator/s of the Estate. This is essentially the same thing as an Executor, but instead of 'executing a Will', they are 'administering an Estate'.
Dying without a Will is called dying 'intestate'. There are rules for each jurisdiction about how an Estate is administered when someone dies without a Will. For more information, see No Will, No Say – a guide to Intestacy Provisions in Victoria
The deceased had a family trust. Does this get dealt with by the Will?
Assets in a family trust do not usually form part of an individual's estate to be dealt with by their Will. Sometimes a Will contains provision to pass control of the trust to a particular person, or the deceased may have prepared supplementary paperwork to deal with the family trust.
If the deceased had an interest in a family trust, it will be particularly important to obtain professional legal and financial advice about how this is dealt with after their death.