Probate in Victoria: A Practical Guide for Executors

The executor's office and the grant

An executor derives office from the Will, not from the Court, and may generally take appropriate protective or preservatory steps before a grant issues — arranging the funeral, securing and insuring property, and engaging advisers. That is not a general licence to deal with the estate. The grant of probate proves the Will and the executor's authority, and many asset dealings, transfers, steps in litigation and distributions cannot safely or practically proceed without it, because banks, share registries, Land Use Victoria, superannuation trustees, aged-care providers and others generally require the grant before dealing with the executor as legal personal representative.

Where there is no valid Will, or no executor is able or willing to act, the equivalent grants are Letters of Administration or Letters of Administration with the Will Annexed. The person who takes out those grants is an administrator and derives authority from the grant itself.

When a grant may be needed

There is no universal estate-value threshold in Victoria above which probate is automatically required. Whether a grant is needed in respect of a particular asset depends on the current requirements of the asset-holder and on how the asset was held. Common situations in which a grant is generally required include:

• Land held solely in the name of the deceased, or as a tenant in common — Land Use Victoria's requirements for transmission or sale generally call for a grant.
• Accounts, share registrations, managed investments, bonds and refundable accommodation deposits where the asset-holder's current release requirements call for production of a grant.
• Estates in which litigation is contemplated, a Part IV family provision claim is anticipated, or a third-party dispute is foreseeable.

Each asset-holder's current requirements should be checked directly before assuming a grant is or is not required.

Assets that may not require a grant

Some assets may be dealt with without a grant depending on the circumstances:

• Land held with a surviving proprietor as joint tenants may pass by survivorship on evidence of death, subject to any competing beneficial interest and any resulting-trust or other equitable issue that would displace the presumption at law.
• Superannuation does not automatically form part of the estate. A valid binding death benefit nomination generally requires the trustee to pay the benefit as directed, subject to the governing legislation, the fund's rules and the nomination remaining valid at death. A non-binding nomination records the member's wishes but leaves the trustee to exercise its discretion under the governing rules. Where the benefit is paid to the legal personal representative, it becomes part of the estate.
• Life insurance may be paid directly to a nominated beneficiary outside the estate depending on the terms of the policy.
• Assets held on trust for the deceased or by the deceased on trust for another are dealt with on the terms of the relevant trust, not simply under the Will.
• Small holdings that an asset-holder is prepared to release on production of the Will, death certificate and indemnity may be dealt with without a grant on that asset-holder's terms.

Beneficial ownership may differ from legal ownership. Where an asset appears to pass automatically but the beneficial position is unclear, legal advice should be taken.

Application process

Applications are commenced online through RedCrest-Probate, the Supreme Court's online case management platform for probate, in accordance with the Supreme Court (Administration and Probate) Rules 2023 and Court practice. The process is not wholly electronic: after online submission, an applicant will ordinarily be directed to provide the Probate Office with the original Will and any codicils, the certificate identifying exhibits, and the originating motion generated by RedCrest-Probate. The current procedure, forms and evidentiary requirements should be checked on the Court's website at the time of application. In outline, the steps for a proving executor generally include:

1. Locating the Will and obtaining the death certificate.
2. Identifying assets and liabilities and obtaining date-of-death information from the relevant asset-holders.
3. Publishing a notice of intention to apply on the Supreme Court's online probate publication service.
4. Preparing and submitting the originating motion, affidavit in support and required exhibits through RedCrest-Probate after the required notice period has passed.
5. Providing the Probate Office with the original Will and any codicils, the certificate identifying exhibits and the originating motion generated by RedCrest-Probate, as directed.
6. Responding to any requisitions from the Probate Office and, when the Court is satisfied, receiving the sealed grant.

Notice of intention

The applicant must publish a notice of intention to apply on the Supreme Court's online probate publication service. Under the current Supreme Court (Administration and Probate) Rules, the notice must have been online for at least 15 days before the application is filed. The current notice period and form should be confirmed on the Court's website at the time.

Timing and what can cause delay

The notice must be online for at least 15 days before filing. After the application is submitted and any required original documents are received, the Probate Office examines the application. There is no guaranteed processing time, and the Court does not commit to one.

Matters that commonly extend the process include requisitions from the Probate Office, a missing or damaged Will, an informal will application, questions about execution or testamentary capacity, a caveat, unusual or non-standard grants, overseas elements such as a foreign Will or foreign assets, and incomplete information about the estate's assets and liabilities.

Obtaining the grant is a distinct step from completing the administration of the estate. How long administration takes depends on collecting or selling assets, paying debts, tax obligations and clearances, creditor issues, any dispute among beneficiaries and the possibility of a Part IV family provision claim.

Missing originals and informal documents

Where the original Will has been lost or destroyed, an application may be made to prove a copy on affidavit evidence dealing with the circumstances of the loss, the terms of the Will, whether a presumption of revocation arises and, if it does, the evidence relied upon to rebut it, and the position of persons interested on intestacy. That application is distinct from an application under section 9 of the Wills Act 1997 (Vic) for a document that does not satisfy the ordinary execution requirements to be admitted as an informal will. Section 9 requires the Court to be satisfied that the deceased intended the document to be the person's will. The two applications rest on different evidence and should not be confused. Legal advice should be taken before either is attempted.

Executors unable or unwilling to act

Not every named executor ends up proving the Will. Common variants include:

• Where more than one executor is appointed, they may apply together, or one may apply while another does not.
• A named executor who has not intermeddled in the estate may renounce probate.
• A named executor may simply not prove, in which case leave to come in and prove later may be reserved.
• Where the named executor has died, lacks capacity or is unwilling to act, another person entitled may need to apply.
• Where no executor is able or willing to act, a grant of Letters of Administration with the Will Annexed may be required so that the Will is still carried into effect.

An executor who has already intermeddled in the estate may not be free simply to renounce, and should obtain advice before taking or declining further steps.

Caveats and contested grants

Two very different kinds of dispute are often confused. A probate dispute concerns whether a document is a valid Will, or who is entitled to a grant. A Part IV family provision claim does not challenge the Will; it seeks provision, or further provision, from the estate for an eligible person.

A probate caveat filed before a grant prevents a grant from issuing while it remains operative. A caveat ordinarily expires six months after filing, and may be brought to an earlier endpoint under the Rules on the application of an interested party. A caveat filed without proper grounds can carry an adverse costs risk for the person who filed it. Where a grant has already issued, the mechanism is generally an application to revoke the grant rather than a caveat. Advice should be taken promptly in either situation.

Administration and distribution

After the grant issues, the personal representative calls in the assets, pays the estate's liabilities and tax, keeps proper accounts and, at the appropriate stage, distributes to the persons entitled under the Will or on intestacy. The personal representative owes fiduciary duties to the estate and to the beneficiaries.

Distribution timing is informed by sections 99 and 99A of the Administration and Probate Act 1958 (Vic), together with the personal representative's fiduciary duties, rather than by a categorical embargo. Section 99 ordinarily requires a Part IV family provision application to be made within six months after the grant, subject to the Court's statutory power to permit a late application; it is not an absolute six-month prohibition on every distribution. Section 99A protects a personal representative in respect of a distribution only where the statutory conditions it sets are satisfied. Neither provision excuses the personal representative from considering known or notified claims, debts, tax, contingent liabilities and the facts of the estate. A personal representative who distributes without properly weighing those matters may be exposed to personal liability if a claim is later upheld. Family provision claims are distinct from proceedings about whether or what grant should issue; overlapping proceedings may exist on the facts.

Creditor notices under section 33

The Supreme Court notice of intention to apply concerns the proposed grant: it tells the world that an application for a grant is about to be made. A notice to creditors and claimants under section 33 of the Trustee Act 1958 (Vic) serves a different purpose during administration: it invites persons with claims against the estate to come forward within the stated period.

Publishing either notice does not erase liabilities the executor already knows about. Any statutory protection depends on compliance with the applicable requirements and on the executor continuing to have proper regard to claims of which they have notice. The current statutory text and the Court's current material should be consulted, and advice taken, before relying on a notice as protection.

Court fees, legal costs and remuneration

Four things should be kept separate: the fee to publish the online notice, the Court's filing fee for the grant, disbursements such as death certificates and title searches, and professional legal fees. The grant filing fee is calculated on the gross value of Victorian assets only. The Probate Office fees effective 1 July 2026 are:

Fees generally change annually. The Supreme Court's current Probate Office fees should be checked before filing.

Legal costs properly and reasonably incurred in obtaining the grant and administering the estate are generally payable from the estate. That is not a guarantee that every cost an executor incurs is recoverable; costs that are unreasonable, or not properly referable to the administration, may not be.

An executor is not automatically entitled to remuneration. Payment may be provided for in the Will, agreed by all informed beneficiaries with capacity, or allowed by the Court as commission under sections 65 to 65E of the Administration and Probate Act 1958 (Vic). Court commission compensates the executor for pains and trouble in administering the estate rather than reimbursing ordinary out-of-pocket expenses, which are dealt with as estate expenses. An application for commission is a distinct post-grant process governed by Order 10 of the Supreme Court (Administration and Probate) Rules 2023, and an administration account verified by affidavit is required before the application is made. Where remuneration is instead agreed with beneficiaries, the consent must be genuinely informed and properly documented. Remuneration authorised by the Will, and the remuneration of a professional executor under the terms of its appointment, are separate matters again.

Land and titles

Where the deceased held land solely, or as a tenant in common, the personal representative deals with the land under the Transfer of Land Act 1958 (Vic) and Land Use Victoria's requirements. Depending on the subsequent steps intended — transmission of the deceased's interest to the executor as legal personal representative, transfer to a beneficiary named in the Will, or sale — different forms and evidence apply. Current Land Use Victoria practice should be checked at the time.

Land held with another as joint tenants may pass by survivorship on evidence of death, subject to any competing beneficial interest and any equitable issue that would displace the presumption at law. The position on the facts should be confirmed before treating the land as outside the estate.

Shareholdings

Listed shareholdings are administered through the relevant share registry. Registry policies and forms differ and change from time to time; the current requirements of each registry holding the deceased's shares should be checked. Where a grant is required by the registry, the executor generally lodges the evidence and forms the registry specifies, before the shares are transferred, sold or transferred to a beneficiary in specie. Coordination with any CHESS-sponsoring broker may be required. On related issues see our guides on lost share certificates in deceased estates and CGT in deceased estates.

Business interests

Business interests are among the more complex assets an executor may encounter. The path forward on the facts depends on the structure and its governing documents:

• For a sole trader, the deceased's individual legal identity does not continue, but the estate may include a functioning business — goodwill, employees, stock, plant, contracts, licences, debtors and creditors — capable of being preserved, continued for a period, or sold. Whether the personal representative may continue trading depends on the Will, statutory powers, the relevant contracts and licences, and the risk involved.
• For a partnership, the terms of the partnership agreement and the Partnership Act 1958 (Vic) govern what happens to the deceased partner's interest.
• For a private company, the shares generally form part of the estate and are administered under the Will, subject to the company constitution, any shareholders' agreement and the applicable transmission provisions; the company itself continues. Control depends on the shareholding, the company constitution and any shareholders' agreement — see our guide on private company shares in deceased estates.
• For a discretionary trust, the trust assets do not pass under the deceased's Will merely because the deceased was a trustee, appointor, beneficiary or practical controller. The trust deed determines succession to offices such as trustee, appointor, principal or guardian. Separately, estate assets may include shares held by the deceased in a corporate trustee, beneficiary loan accounts, unpaid present entitlements and any other transmissible legal or equitable rights. The deed, corporate records, resolutions and accounts must be reviewed together before deciding what forms part of the estate and who controls the trust after death.

Early professional advice on the specific structure and its documents is often useful.

Sources and further reading

• Administration and Probate Act 1958 (Vic) — current in-force version
• Wills Act 1997 (Vic) — current in-force version
• Trustee Act 1958 (Vic) — current in-force version
• Supreme Court (Administration and Probate) Rules 2023 (Vic)
• Supreme Court of Victoria — How to apply for a grant of probate or administration
• Supreme Court of Victoria — Probate Office fees
• Supreme Court of Victoria — Wills and deceased estates proceedings, including caveats
• Supreme Court of Victoria — Probate Office summons for commission

Frequently Asked Questions