Will, probate. superannuation

Wills and Estates 101 – What is Probate and do I need it?

25 May 2020

In the second of our Wills and Estates 101 series we speak with Marcus Schivo, a lawyer in our Wills, Trusts and Estates team, to answer common questions around Probate and what you need to do.

Firstly, what is Probate?

Probate is a legal process that is often required to validate a deceased person’s Will, generally because the nature of their assets requires doing so. If the deceased person died leaving assets located in Victoria, an application for Probate of the Will can be filed with the Supreme Court of Victoria.

Who applies for Probate?

The executor or executors appointed by the Will can apply for Probate. If a Will appoints more than one person as an executor, each of them can apply together for a grant of Probate, provided they are each over the age of 18. The maximum number of executors that can apply for a grant of Probate is four.

Not all of the executors appointed by the Will are required to apply for Probate. One (or more) executors may apply while others may wish to take a ‘leave reserved’ position. This is a decision often made by executors where it may be impractical for all of them to apply.

If awarded, a ‘grant of Probate’ is the Court’s official recognition of the validity of the Will. It empowers the executors to whom Probate has been granted to deal with the assets of the deceased person, and administer their estate in accordance with the terms of the Will.

When is Probate necessary?

Probate is usually required where the deceased person died leaving particular kinds of assets requiring a grant of Probate to transmit them. For example, if a person dies being the sole owner of land, then a grant of Probate is required in order to either sell the land or transfer it in accordance with the terms of the Will.

Similarly, banks will often require a grant of Probate in order to release the funds held in a deceased person’s account to the executors, if the balance of the account exceeds $25,000. It is worth noting that each financial institution has its own policy regarding deceased estates, and you are advised to check with them regarding your own personal circumstances.

The collection or transfer of small sums of money and personal assets often don’t require a grant of Probate. Section 31A of the Administration and Probate Act 1958 (Vic) confirms this position, and provides that a person who holds money or personal property of a deceased person, with a value of less than $25,000, can transfer such assets to specific people without requiring a grant of Probate. The following people who appear to be entitled to the assets, provided they are an adult and don’t have a disability, may receive the assets:

  • The surviving spouse or domestic partner of the deceased;
  • An adult child of the deceased; or
  • Any other person.

In the circumstances the person seeking to receive the asset(s) should produce certified copies of the person’s Will and death certificate, in order to establish that the asset owner has passed away, and that they have authority to deal with the assets on behalf of the estate.

Probate of a Will may also be required where a person or legal entity seeks to commence legal proceedings against the deceased person’s estate. Without a grant, the estate cannot be sued.

What if none of the executors can apply for Probate?

There may be many reasons why the executor or executors of a Will cannot or will not apply for Probate. They may have passed away before the Willmaker, be incapable due to old age or disability, be living outside of Australia, or feel they are unable due to personal circumstances. In this case, a beneficiary of the Will can apply for a grant known as ‘Letters of Administration with Will annexed’. Such a grant is usually made to the beneficiary, or beneficiaries of the Will, with the greatest interest in the estate under the Will. The person to whom such a grant is made is given the same kinds of powers as would the executors appointed by the Will, and is known as an ‘administrator’, rather than an ‘executor’.

Rigby Cooke’s Wills, Trusts and Estates team can assist you or your family in obtaining simple or complex grants of Probate, Letters of Administration, or lodge a caveat in circumstances where you wish to stop a person from obtaining a grant of Probate or Letters of Administration.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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