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. On death, the executor named in a valid Will has legal capacity to act in respect of the estate. The grant of probate is the Court's confirmation of that office; it operates as the formal proof of the Will that third parties — banks, share registries, Land Use Victoria, superannuation trustees, aged-care providers and others — generally require before they will deal 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 proceed through the Supreme Court's online case management platform for probate, in accordance with the Supreme Court (Administration and Probate) Rules and Court practice. 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 filing the originating motion, affidavit in support and required exhibits on the Court's online platform after the required notice period has passed.
5. Responding to any requisitions from the Probate Registry 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 application generally cannot be filed until at least 15 days after publication of the notice. The current notice period and form should be confirmed on the Court's website at the time.

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, the absence of any presumption of revocation 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.

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 governed by sections 99 and 99A of the Administration and Probate Act 1958 (Vic), together with the personal representative's fiduciary duties, not by a categorical embargo. Section 99 sets the ordinary period for making a family provision application from the date of the grant, subject to the Court's power to extend on the conditions the section sets. Section 99A provides specific protections for the personal representative in respect of distributions made on the conditions it sets. A personal representative who distributes without properly weighing known and contingent liabilities, tax and potential Part IV claims 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.

Court fees, legal costs and remuneration

The Supreme Court's probate filing fees are set by regulation and scale with the gross value of the estate. Fees change from time to time; the Court's current probate fees should be checked at the time of application. Additional costs include the notice publication fee, out-of-pocket costs such as death certificates and title searches, and legal professional fees, which depend on complexity. Legal costs of obtaining a grant are generally payable from the estate.

An executor is not automatically entitled to remuneration. Payment may be provided for in the Will, agreed by all informed beneficiaries with capacity, or ordered by the Court under section 65 of the Administration and Probate Act 1958 (Vic). Professional executor remuneration depends on the terms of the appointment.

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 business as a going concern does not survive death independently of the deceased. Goodwill, plant, debtors and creditors are dealt with as part of the estate.
• 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 pass under the Will, but the company 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.

Frequently Asked Questions