Grant of Probate in Melbourne and Why It’s Important

When you make a Will, you need to appoint an executor and, in some circumstances, a trustee, who will handle your affairs when you die. It’s commonly assumed that a Will can be actioned immediately after death. However, in many cases the Will can’t be acted upon until Probate has been granted by the relevant court. Before your executor can distribute your assets in line with your Will and pay off your debts, they may need to apply for a Grant of Probate.

How to Apply for Probate

Probate is an order of the Supreme Court of Victoria confirming that a Willis valid. It gives the appointed executor the legal authority to deal with the assets of the deceased person’s estate (testator) to pay any debts and distribute the residue to the people entitled (beneficiaries) under the terms of the Will.

To apply for Probate, you must be over 18 years and named as an executor in the Will. There are a few ways to apply for Probate. You may either:

instruct a probate lawyer to act on your behalf
authorise a trustee company to act as executor or administrator
make the application as a self-represented person (without a solicitor) or
if eligible, instruct the Probate Office small estates service to prepare your application.

The testator’s death must also need to be proved by production of a full Death Certificate and the Court will establish the Will as legally valid.

Do I Have to Apply for a Grant of Probate?

Whether Probate is necessary depends on the size of the estate, the value of assets and whether they are held in Victoria. A relatively large estate often requires Probate. Unless Probate has been granted a bank may refuse to allow the testator’s accounts to be accessed by the nominated executor if the holdings are over a certain value.

Probate may not be necessary if the deceased person’s estate is small, does not contain real estate, or the assets are jointly held. If there is no Will, a different process is used, known as ‘Letters of Administration’.

Getting Help with a Probate Application

A probate lawyer can assist in a variety of ways, including:

Preparing your Probate application for the Supreme Court
Meeting with you to witness the signing of your Probate application
Advertising your intention to apply for Probate of a Will
Lodging your application at the Supreme Court
Helping you understand your responsibilities as executor of the Will
Providing you with certified copies of the Grant of Probate

What Happens after Probate is Granted?

The Grant of Probate is the legal authority for the Executor to deal with the assets and liabilities of the Deceased. With Probate the Executor can close bank accounts, sell assets such as shares, cars and furniture and household goods, and pay any debts.

After the assets have been collected and the debts and liabilities of the estate are paid the balance of the assets can then be distributed to the beneficiaries entitled under the Will, and including the transfer of real estate if applicable.

Probate & Estate Administration Lawyers

At McNab McNab & Starke, our probate lawyers can take on the burden of administering an estate and carrying out the provisions of a Will.

Estate administration can be complex and time consuming, and requires expert knowledge to ensure that the Will is distributed correctly and that all taxation obligations are dealt with, including capital gains tax. Further consideration must be given to the potential of anyone contesting the Will, or making a claim that they should be provided for.

We offer tailored advice and services to ensure everything is carried out according to law. Our extensive team includes:

What is a Grant Of Probate?