Probate in Victoria: A Practical Guide for Executors

What is Probate?

Probate is the formal confirmation by the Supreme Court of Victoria that:

• The Will placed before the Court is the last valid Will of the deceased; and
• The person named as executor has authority to administer the estate in accordance with it.

The grant — a single sealed document — is what banks, share registries, the Titles Office, superannuation funds, aged care providers and other institutions rely on before they will release information or transfer assets to the executor. Without it, those organisations generally have no way to know who is legally entitled to act for the deceased.

Where there is no valid Will, the equivalent grant is called Letters of Administration, and where there is a Will but no surviving executor able or willing to act, the Court grants Letters of Administration with the Will Annexed. The processes are similar; the terminology depends on the circumstances of the estate.

When Probate is Required

There is no fixed estate value above which probate is automatically required. Each asset-holder applies its own threshold. In practice, probate is needed where the estate includes any of the following:

• Real estate held solely in the deceased's name (or as tenants in common). The Titles Office will not transfer or sell the property without a grant.
• Bank accounts above each bank's threshold — commonly $20,000 to $50,000, although this varies by institution and is reviewed periodically.
• Share portfolios above the relevant registry's threshold — typically around $15,000 to $50,000 per holding, again depending on the registry.
• Managed investments, term deposits and bonds above the institution's threshold.
• Aged-care refundable accommodation deposits — generally requiring a grant before release.
• Estates expected to be litigated or where a Part IV family provision claim is anticipated.

When Probate May Not Be Required

Conversely, probate is often unnecessary where the estate consists only of:

• Assets held jointly with a surviving owner (joint bank accounts, jointly owned real estate held as joint tenants). These pass automatically to the survivor by survivorship and fall outside the estate.
• Superannuation paid directly to a beneficiary under a valid binding death benefit nomination — although it will form part of the estate if paid to the legal personal representative.
• Life insurance paid directly to a nominated beneficiary outside super.
• Small bank balances below each institution's release threshold, where the bank is willing to release on production of the Will, death certificate and indemnity.
• Personal effects, motor vehicles and household items that can be dealt with informally among the family.

Where doubt exists, it is usually better — and cheaper — to apply for probate than to attempt to administer the estate without it, only to discover later that a grant is required after all.

The Probate Process Step-by-Step

1. Locate the original Will. The original is required. Check with the deceased's solicitor, bank safe custody, and personal records.
2. Obtain the death certificate. Issued by the Registry of Births, Deaths and Marriages Victoria, typically two to six weeks after the funeral director lodges the relevant notification.
3. Identify assets and liabilities. Notify each bank, share registry, superannuation fund, aged-care provider and other relevant institution of the death; obtain date-of-death balances and indicative valuations of real estate and significant chattels.
4. Advertise the intention to apply. A notice is published on the Supreme Court's online probate publication service at least 14 days before the application is filed. This gives creditors and any potential challenger an opportunity to come forward.
5. Prepare the probate application. The executor signs an originating motion, an affidavit in support, an inventory of assets and liabilities, and exhibits the original Will and death certificate.
6. File the application with the Probate Office of the Supreme Court of Victoria. The application is examined by Registry staff, who may issue requisitions requiring further information or documents.
7. Receive the grant of probate. Once the Court is satisfied, the sealed grant issues.
8. Administer the estate. The executor uses the grant to call in assets, pay liabilities and tax, and distribute the estate in accordance with the Will.

Documents Required

The standard probate application requires:

• The original signed Will (and any codicils);
• The original death certificate;
• Photographic identification of the executor;
• Confirmation that the probate notice has been published;
• A complete inventory of assets and liabilities with date-of-death values;
• Date-of-death statements from each bank, registry, superannuation fund and other asset-holder;
• Recent rates or valuation evidence for any real estate;
• Where applicable, additional affidavits dealing with informal Wills, lost originals, witnessing irregularities or the death or incapacity of a named executor.

Executor Responsibilities

An executor owes fiduciary duties to the beneficiaries and the estate. The role typically includes:

• Locating and securing estate assets — including the family home;
• Arranging or confirming the funeral and paying funeral expenses;
• Notifying institutions, government departments and Centrelink of the death;
• Obtaining probate and producing the grant to each asset-holder;
• Calling in the assets and consolidating estate funds;
• Paying liabilities, including outstanding tax and a final income tax return for the deceased;
• Maintaining estate accounts and keeping beneficiaries reasonably informed;
• Distributing the estate in accordance with the Will, after the statutory waiting periods (see Timeframes below);
• Defending or settling any family provision or other claims.

Executors who distribute too early — before the six-month window for family provision claims — can be personally liable if a claim is later upheld and the estate has been dissipated. Proper advice is important.

Timeframes

The timeline of an estate is shaped by both Court processing and the underlying administration. As a general guide:

• Application preparation: typically four to eight weeks from the date the executor first instructs a solicitor, depending on the complexity of the assets and how quickly date-of-death information is provided by institutions.
• Court processing: historically two to four weeks once filed, but currently subject to variable Registry waiting times — applications can take six to twelve weeks or longer, particularly where requisitions are issued.
• Calling in assets: a further four to twelve weeks after the grant issues, depending on the institutions involved.
• Distribution: generally not before six months from the date of the grant, to protect the executor from a late family provision claim under Part IV of the Administration and Probate Act 1958 (Vic).

For a straightforward estate, a complete administration typically runs nine to twelve months from death. Complex estates — those involving businesses, trusts, contested Wills, foreign assets or significant tax issues — can take substantially longer.

Costs

The principal costs of a probate application are:

• Court filing fee, which is set by regulation and scales with the gross value of the estate. The fee ranges from a modest amount for small estates to several thousand dollars for larger estates.
• Probate notice publication fee through the Supreme Court's online service.
• Legal professional fees, which will vary depending on the complexity of the estate, the assets involved and whether any issues arise during the administration.
• Out-of-pocket costs — death certificates, title searches, valuations and accountant's fees for final income tax returns.

Legal costs of obtaining a grant are generally payable from the estate. Parke Lawyers provides a written costs disclosure and costs agreement at the commencement of each matter, so executors and administrators understand the likely costs and scope of work from the outset.

Common Probate Delays

In our experience, applications are most often delayed by:

• The original Will not being found, or being found in a damaged or unusual state;
• Defective execution — incorrect witnessing, missing signatures, alterations after signing;
• Death certificates that contain inconsistencies with the Will (for example, a different name or marital status);
• An executor who has predeceased, lost capacity, or cannot be located;
• Late date-of-death valuations from banks, share registries or aged-care providers;
• Requisitions from the Probate Registry requiring supplementary affidavits;
• Threatened or actual family provision claims that pause distribution;
• Complex superannuation, business or trust assets requiring separate advice before the inventory can be finalised.

Most of these delays are avoidable with careful, early preparation by an experienced estate lawyer.

Probate for Property Owners

Where the deceased owned real estate solely or as a tenant in common, the title cannot be transferred or sold without a grant of probate (or Letters of Administration). After the grant issues, the executor lodges an Application by Legal Personal Representative with Land Use Victoria, which records the executor on title. The executor can then either:

• Transmit the property to a beneficiary named in the Will, by registering a transfer in their favour; or
• Sell the property as executor, with the net sale proceeds forming part of the estate for distribution in accordance with the Will.

Where the property was held as joint tenants with a surviving owner, it passes by survivorship outside the estate and probate is generally not required for that asset alone.

Probate for Share Portfolios

Listed shareholdings are administered through the relevant share registry — typically Computershare or Link Market Services. After the grant issues, the executor lodges:

• A certified copy of the grant of probate;
• A certified copy of the death certificate;
• The standard transfer forms from each registry.

The shares can then be transferred into the executor's name and either sold on market or transferred to a beneficiary in specie. For shareholdings worth more than each registry's threshold, the registry will refuse to act without a grant. CHESS-sponsored holdings often require coordination with the deceased's broker, which can introduce additional forms and timing.

Probate for Business Owners

Business interests are among the most complex assets in any estate. The path forward depends on the structure:

• Sole trader. The business effectively ends on death, although goodwill, equipment, debtors and creditors all need to be dealt with as part of the estate.
• Partnership. The terms of the partnership deed govern. Most modern deeds provide for a buy-out of the deceased's interest by the surviving partners, often funded by life insurance.
• Company. The deceased's shares pass under the Will, but the company itself continues. Control of the company depends on the shareholding, the company constitution and any shareholders' agreement.
• Discretionary trust. The trust is not owned by the deceased; what passes under the Will is control of the trust — typically the role of appointor — together with any unpaid present entitlements and loan accounts.

Coordinating the grant of probate with the operating decisions of the business — supplier relationships, employees, banking facilities, ATO obligations — is one of the more demanding aspects of an executor's role. Early professional advice is often the difference between a smooth transition and a destroyed enterprise.

Frequently Asked Questions