Deceased Estates FAQs
Q: Is a Grant always required?
A: The requirement for a Grant will often depend on the nature and extent of the assets of the deceased. If an Executor or Administrator is required to prove his or her title to assets in the name of the deceased the production of the Grant will be necessary. A Grant is always required if the deceased solely owned real estate, as the Registrar of Titles will only certify title after sighting a Grant. If all assets of the deceased are held in joint names a Grant will not be required as joint assets pass by law to the survivor.
Often estates are administered informally i.e. without a Grant. Many organisations such as banks and insurance companies may release money without a Grant if the amount held in the name of the deceased is minimal and there are no complications. Conditions may, however, be imposed.
Q: Am I entitled to apply for a Grant?
A: Legislation and common law principles govern who may be entitled to apply for a Grant. In testate estates (that is, where there is a valid will) the named Executor is entitled to the Grant. If for any reason the executorial appointment fails eg: the Executor predeceased the Testator, then the person with the greatest proprietary interest in the estate is entitled to apply. In intestate estates, subject to rules of priority, a next of kin is entitled to the Grant, eg. spouse or child of the deceased.
Q: The will of the deceased has been amended, but the amendments have not been initialled. Can I still obtain Probate?
A: Where any obliteration, interlineation or other alteration to a will is not authenticated in a manner prescribed by the Wills Act 1997, the Registrar will require evidence to show that the alteration was made before execution and will give directions as to the form in which the will is to be proved.
Q: I am the de facto partner of the deceased. Am I entitled to share in the intestate estate of my partner?
A: In estates where a person died intestate on or after 8 November 2001 "domestic partners", including same sex partners, are able to share in the estate. Where a person is a domestic partner of the deceased at the time of death and where the person has lived continuously with the deceased for 2 or more years or is the parent of the deceased's child then the "domestic partner" takes the "spouse's share" of the estate.
Where there is both a domestic partner and a spouse, then the domestic partner and the spouse share the spouse's share of the estate according to a table set out in the Administration and Probate Act 1958. In determining whether persons were domestic partners of each other, applicants for Grants must have regard to the factors set out in section 275(2) of the Property Law Act 1958. These factors include details of the duration of the relationship, whether or not a sexual relationship existed, financial and property matters, evidence of the reputation and public aspects of the relationship.
Q: What happens if an Executor dies before fully administering an estate?
A: If executorial duties are outstanding at the death of a sole or last surviving Executor the Court has power (unless there is a chain of representation) to appoint an Administrator with the will annexed to complete the administration.
Q: Can a Grant of representation made by the Registrar be revoked?
A: In circumstances where a Grant has irregularly or unlawfully been obtained the Court Rules make provision for proceedings to revoke a Grant of Representation. Discovery of a later will, lack of testamentary capacity and fraud in obtaining the original Grant are the common grounds for revocation.
Q: I know that the deceased kept his original will at home but after extensive searches it cannot be found. Can I obtain Probate of a copy of the will?
A: Generally, where a will is in the hands of a Testator and is not produced on his death the Court can presume that the will was destroyed by the Testator with the intention of revoking it. However, the presumption may be rebutted by proof which raises a higher degree of probability to the contrary.
Q: Can more than four Executors apply for Probate?
A: The general practice of the Court does not permit Probate to be granted to more than four persons. It is regarded as unsatisfactory and inconvenient for the administration of the estate of the deceased.
Q: Can a person who drafts a will also receive a benefit under the will?
A: In circumstances where a draftsperson receives a benefit, a "will" will not be admitted to Probate unless it is established to the Court that the Testator was capable of making the will, that he or she knew and approved of its contents and that there was nothing in the way of undue advantage taken by the draftsperson. Medical evidence to establish the testamentary capacity of the Testator at the time the will was executed and affidavits of good conscience are generally required.
Q: Can a Grant of Representation be made to an attorney?
A: Where the sole Executor, or the person entitled to a Grant of Administration, is resident outside Victoria, Administration may be granted to an attorney. The Grant is generally limited until the Executor or person entitled to the Grant obtains a Grant, or in such other way as the Registrar directs.
Q: The persons entitled to the intestate estate are minors. Who is entitled to a grant in such cases?
A: Grants cannot be made to persons under age, but must be made to their guardians for their use and benefit until they attain the age of 18 years subject to any limitations or conditions the Registrar thinks fit. A minor aged 12 years or over may elect a guardian, otherwise the Registrar may assign a guardian. The Registrar will not assign a guardian unless satisfied that the proposed guardian is ready and able to undertake the guardianship.
Q: I am a creditor. Can I apply for a Grant?
A: An application by a creditor may be made whether the deceased died testate or intestate. The application must be supported by an affidavit detailing the amount of the debt due from the deceased and particulars of the debt together with such evidence proving the debt as may be appropriate. Generally the Registrar will require the consent to the application of all those entitled to the Grant in priority to the creditor.
Q: Can Grants of Representation from interstate be resealed in Victoria?
A: Yes, Victoria and all the Australian States and Territories have provisions under which a Grant made in another State or Territory can be resealed. The Victorian statutory provisions make it clear that a Grant of Representation once resealed is as effective as if the original Grant had been obtained in Victoria.
Q: Who is entitled to apply for a reseal?
A: An application for resealing of a Grant may be made either in person or through a legal practitioner -
by the Executor or Administrator; or
by a legal practitioner on behalf of the Executor or Administrator; or
by a person duly authorised by power of attorney.
It is common practice in Victoria for legal practitioners to make applications. The legal practitioner swears in a supporting affidavit that he or she has been instructed by the Executor (or Administrator), that the Executor (or Administrator) is desirous of having the Grant resealed. It is not necessary to produce any written instructions from the Executor or Administrator.
Q: The will has not been executed correctly. Can Probate be granted?
A: Section 9 of the Wills Act 1997 allows the Court and the Registrar to admit to probate a defective document which fails to comply with the usual formalities. It also allows a duly executed will, which contains informal alterations, to be admitted to probate, including the alterations. The Court and/or Registrar must be satisfied that the deceased intended the document/alteration to be his or her will.
Q: The will of the deceased was executed in a foreign jurisdiction. Is it valid in Victoria?
A: A will is taken to be properly executed if its execution conforms to the internal law in force in the place -
where it was executed; or
which was the Testator's domicile or habitual residence either at the time the will was executed, or at the Testator's death; or
of which the Testator was a national, either at the date of execution of the will, or at the Testator's death.