What is Probate or a Grant of Administration?
If a person dies in the state of Victoria leaving assets valued at over $50,000 and has a valid Will, a Grant of Probate is required in order to finalise the Estate.
If a person dies in the state of Victoria leaving assets but no Will, a Grant of Administration is required in order to finalise the Estate of the deceased. If there is no Will usually the person who will apply for the Grant of Administration is the deceased’s person spouse, child or closest next of kin.
What is the role of the Executor/Administration
If there is a valid Will it will name a person(s) known as an Executor. If there is no Will that person who applies is known as the Administrator.
Generally the tole of the Executor or Administrator involves:
- Collecting or gathering all of the deceased’s assets;
- Paying any debts;
- Distributing the assets to the persons named in the Will or who are entitled by Law;
- Selling or dealing with the deceased’s assets.
PROBATE
A Grant of Probate is essentially a licence for the Executor to deal with the Estate of the deceased. Probate is granted to the executor when there is a valid Will.
GRANT OF ADMINISTRATION
The Grant of Administration is similar to a Grant of Probate as it gives the Administrator the right to deal with the Estate of the Deceased. The Grant of Administration is issued by the court when the deceased died leaving no valid Will.
What is an Executor?
A person named in the Will who is appointed to administer the Estate of deceased. In some cases the Will may name one or more persons or an institute such as State Trustees to act as Executor. The Executor must be a person over the age of 18 years and who is of sound mind. The Executor will apply for a Grant of Probate of the Will. Probate gives the Executor the legal right to act.
What is an Administrator?
If there is no Will then a person who is usually the spouse, child or closest next of kin applies t the court to act as the Administrator of the Deceased’s Estate. That person must be over the age of 18 years old and of sound mind. The Administrator will apply for a Grant of Administration or Letter of Administration. The Grant of Administration or Letter of Administration gives the Administrator the legal right to act.
Are there time limits?
Usually an Estate should be finalised within 12 months of the date of the Deceased, however if more than 3 years have passed since the date of death, the Registrar of Probate will want to know why there has been a delay and this is usually explained in an Affidavit filed with the court.
When do I apply for Probate?
An application for Probate or Letter of Administration will need to be made to the Supreme Court of Victoria, only if the deceased had assets in the state of Victoria. If the deceased had assets in another state then Probate will need to be applied for the state where those assets are held.
How long does it take for Probate to be granted?
Is usually takes 6-8 weeks for Probate to be granted from the time of taking instructions to the date when Probate is granted.
How do you apply for Probate/Letter of Administration?
Anthonys Solicitors with over 30 years of experience in this area can apply for Probate on your behalf. All applications are now done electronically on the Supreme Court website (RedCrest – Probate). Similarly, all Probate office lodging fees and advertisements are done online. When applying for Probate/Letter of Administration the following documents need to be filed with the court:
- The Advertisement;
- The Will;
- The Death Certificate;
- The Affidavit of Executor/Administrator;
- An inventory of assets/liabilities;
- An Affidavit of
If the Registrar of Probate requires further information a further Affidavit mat need to be filed. This is known as a Affidavit of
Contesting a Will
In order to contest a Will or make what is known as a family provisional claim in Victoria the relevant Act of Parliament that applies is the Administration + Probate Act. To contest a Will you need to be what is defined in the act as an “eligible person”. An eligible person usually the spouse or domestic partner of the deceased, a child including adopted child, a stepchild a former spouse or former domestic partner. If at the time the deceased’s passing would have been able to commence proceedings under the FLA.
Time limits
There are strict time limits when making a family provision claim. The claim must be brought within 6 months of obtaining the Grant of Probate or Letter of Administration. The court mat in some cases agree to an extension of time providing the estate has not been completely administrated.
Which Court?
An application to contest can be bought in either the CCV or the SCV. An application can be made in the Magistrates court or VCAT.
Why contest?
If you have been left out of a Will or if you believe the Will fails to make adequate provision for you, or the Deceased had a responsibility (or moral obligation) to provide; then you should speak with Anthonys Solicitors. De Facto, spouse and same-sex partners (domestic partners_ can also apply if insufficient provision has been made.
Do I have a good case?
Each case is different. What is not different is the courts approach. The court usually applies the following test – did the deceased have a moral responsibility to provide, and did the deceased fail in that obligation to make adequate provision for the applicant? In most cases the applicant will need to demonstrate o the court that he/she has an economic need for support.
The court will further give consideration to the following factors:
- The net value of the Estate;
- The age, sex, health and financial circumstances of the applicant;
- Whether there was a relationship between the applicant and the deceased;
- Will the applicant receive any form of financial support for the deceased in the deceased’s life such as gifts, transfer of property, or other provisions;
- The final reason of the applicant are further needs;
- The character + ? of the applicant.
Power of the court
The court can adjust the Will if it believes that the terms of will are unjust or fail to make adequate final provisions for the applicant.
For more information on how Anthonys Legal can help you with Wills & Probate, contact us today: Contact Us
