Losing a loved one can bring immense grief. Amidst this, if you’re named an executor in their Will, things can become more overwhelming. Gaining an understanding of the following process can bring some relief, though.
One of the first questions that one might think of is whether Probate is needed before an estate can be dealt with. It is easy to assume that every estate goes through Probate, but that is not the case. Some can be administered without a grant, while others require the executor to obtain one beforehand.
This guide explains what a Grant of Probate is, when it is required and what the application involves.
What Is a Grant of Probate?
A Grant of Probate is a legal document issued by the Supreme Court. It confirms that the Will is the last valid Will of the deceased and confirms the authority of the executor named in it to administer the estate.
Banks, investment providers and other organisations may ask to see the grant before releasing or transferring assets. Whether a grant is required will depend on the organisation and the circumstances of the estate.
When Is Probate Required?
Probate is generally needed where the executor must provide formal proof of their authority before an asset can be dealt with. There is no single estate value that automatically makes Probate compulsory. The nature of the asset and the way it is held are relevant, as are the requirements of the organisation holding it.
Property Owned Solely by the Deceased
Real estate is one of the more common situations in which Probate becomes necessary. In Victoria, a grant is required where the deceased owned property solely in their name or held an interest as a tenant in common.
A tenant in common owns a separate share of a property, and that interest forms part of the estate. Property held as a joint tenancy is different. The deceased’s interest will generally pass to the surviving joint owner instead.
This distinction often matters when dealing with a family home or investment property, making a Grant of Probate in Victoria relevant to the administration.
Bank Accounts and Investments
Financial assets can raise the same issue. Bank accounts, shares, managed funds and other investments held solely in the deceased’s name may require a grant before they can be accessed or transferred.
Financial institutions have their own procedures, and some may release certain assets without Probate. Contacting the organisation directly can establish what it needs.
Jointly Held Assets
Not every asset forms part of the estate. A jointly held bank account, for example, may pass to the surviving account holder. Jointly owned property may also pass to the surviving owner.
The executor should check the relevant records before deciding how the asset needs to be dealt with.
How Does the Grant of Probate Process Work?
Once the executor knows that an application is needed, the next task is to prepare the information the Court requires. The procedure varies between Australian states and territories, although the broad stages are similar.
Gathering the Necessary Information
The original Will, death certificate and details of the deceased’s assets and debts are central to the application. The executor may also need information about people named in the Will. These records give the executor the information needed to prepare the Court documents.
Preparing the Application
In Victoria, the application is made through RedCrest-Probate. The supporting material includes an inventory of assets and liabilities and an affidavit, along with the original Will and any codicils. The Supreme Court of Victoria’s application guidance sets out the current requirements.
Publishing the Notice
Before a Victorian Probate application can be filed, the executor must publish a notice of their intention to apply. At least 15 days must pass after the notice is published before the application can be lodged. Other Australian jurisdictions have different notice requirements.
Lodging the Application
After the notice period has ended, the executor submits the application and supporting documents. The Probate Office reviews the material and may contact the executor if information is missing or needs clarification. When the Court is satisfied that the requirements have been met, the Grant of Probate is issued.
How Long Does the Grant of Probate Take?
If you are asking how long a Grant of Probate takes, there is no exact timeframe that applies to every application. In Victoria, the Supreme Court says the process may take several weeks. The 15-day notice period forms part of that timeframe, followed by the Court’s review of the application. Current Court guidance also warns that applications are taking longer than the previously published 5–10 working-day review period because of processing delays.
Further information or corrections can extend the wait. The Supreme Court of Victoria’s Probate FAQs provide current processing information.
What Happens After Probate Is Granted?
Receiving the grant allows the executor to deal formally with assets that require Court authority. The work that remains will depend on the estate and may include:
- Collecting money held by banks or investment providers
- Selling or transferring property
- Paying debts and estate expenses
- Dealing with other estate assets
- Distributing the remaining assets to beneficiaries under the Will.
Probate does not complete the administration; the executor still has to finalise the estate. The Supreme Court’s guidance similarly describes the post-grant responsibilities as collecting and managing assets, paying outstanding debts and distributing what remains.
What If There Is No Will?
Probate applies where there is a valid Will and an executor named in it applies for the grant.
If there is no valid Will, the estate is generally dealt with through Letters of Administration. Where a valid Will exists but the named executor is unable or unwilling to act, Letters of Administration with the Will Annexed may be appropriate instead.
Final Thoughts
A Grant of Probate is not required for every deceased estate. An executor should first establish whether a grant is needed for the assets that have to be dealt with and whether the relevant organisations require one. Where an application is necessary, having the Will and supporting documents ready can help avoid delays, particularly where a notice period applies.
If you need help determining whether Probate is required or preparing a Probate application, our experienced lawyers at Australian Probate Centre can assist you with understanding the process and the requirements involved.
