What is an executor ?
A person appointed by the will to administer the estate. A will may appoint more than one executor.
What is an administrator ?
A person appointed by the Court, by an official document called ‘letters of administration’, to administer a deceased estate that has no executor. This may be because there is no will, the will did not appoint an executor, or a named executor is unwilling or unable to act. The Court usually appoints the deceased person's closest relative as administrator.
What does an executor or administrator do?
They must make sure any debts, including funeral expenses, are paid and that any remaining assets are distributed according to the deceased's wishes (where there is a will) or the laws of intestacy (where there is no will). Intestacy is a legal term that refers to the situation when there is no will. The laws of intestacy are contained in the Administration and Probate Act.
Sometimes the tasks of paying debts and distributing assets can be done informally. In some instances, however, it may be necessary to obtain a grant of probate or letters of administration (collectively referred to as grants of representation) before these duties can be completed.
What are letters of administration?
A document issued by the Court where the deceased has not left a will.
Who applies for letters of administration?
If the deceased has not left a will, the deceased person’s closest relative usually applies for letters of administration. The laws of intestacy in Victoria, contained in the Administration and Probate Act, prescribe the order of priority for people who may make the application. This can be complicated. You may need to seek legal advice.
What is a grant of representation ?
This gives a person the legal right to administer the estate of a deceased person. Probate and letters of administration are together referred to as ‘grants of representation’.
Is there a time limit on applying for a grant of representation?
No. However, if more than three years have passed since the date of death of the deceased, you need to explain the delay in your affidavit .
How do I get an office copy of the grant of representation?
Email your request to email@example.com@etaborp or visit the Probate Office on Level 2, 436 Lonsdale Street, Melbourne to request a copy. It usually takes 2-4 weeks to process. The cost is $18.80, which you can pay in person or by posting an Australia Post money order or bank cheque, made out to the Registrar of Probates , to the Probate Office address. We will post you the office copy unless you have made other arrangements.
What is the Small Estates service?
If a person dies leaving property and/or assets valued at less than $107,160 in total, the person entitled to apply for probate or administration may request that a Small Estates officer prepare and file the application. This service is available for a fee of $309.20 (current at 30 September 2018). The fee includes preparing the application, the application fee and publishing the online advertisement. The Probate Office is not obliged to offer this service if the application is unusual or complex.
What is probate ?
Probate is the process by which the Court approves that the will is valid and that the executor (s) can act on the will.
Is it necessary to apply for probate/administration?
There is no automatic requirement to apply for probate or administration when someone dies. It will depend on what assets have been left solely in the name of the deceased, and the requirements of institutions holding those assets.
Who applies for probate?
Usually a trustee company or a solicitor acting on behalf of the executor(s) makes an application for probate, but an executor can do the process without legal help if they prefer. Instructions and forms are on our website under ‘Wills and Probate’. To apply for probate, you must be aged over 18 and be an executor named in the will.
Where do I apply for probate?
You apply to the Supreme Court of Victoria, but only if the deceased’s assets are located in Victoria. If there are assets in another location, you may need to contact the relevant court.
How do I apply for probate?
Instructions and the forms you need are on our website under ‘Wills and Probate’.
Will the Court keep the original will after probate is granted?
Yes, the Court keeps the original will.
What is included in a person’s estate?
Any real estate and/or personal property and debts that need to be managed and finalised.
How long does it take for probate to be granted?
It may take several weeks for the application to be granted from the date you apply (noting that you can only apply after your advertisement has been on the Supreme Court website for at least 15 days).
Why do I need to publish an online advertisement?
The advertisement is the start of the application process (whether or not the deceased left a will). It gives all interested people a chance to contact you if they have important information about your application.
How do I publish my online advertisement?
See the information on our website. Click on ‘Wills and Probate’, then ‘Applying for a grant of probate or administration’. Step 3 in the process has more information.
How can I add or change information in my advertisement?
You can change the information in the generated advertisement at the step called ‘Advertisement’, before you click ‘Submit’. Apart from full stops and commas, do not include any punctuation or symbols, such as / \ : or ;. For example, instead of 1/12 Collins Street, put Level 1, 12 Collins Street.
After publishing my online advertisement, when can I apply to the Probate Office?
You must allow at least 15 days, after publishing your online advertisement, before filing your application for a Grant of Probate , Letters of Administration or Letters of Administration with the Will Annexed.
Where can I find the forms?
On our website click on ‘Wills and Probate’, then ‘Applying for a grant of probate or administration’ for steps in the process and the forms that support these steps.
What do I write where the document asks for ‘Date of Document’?
The date the document is completed.
Who completes the Affidavit of Publication of Notice and Searches?
The person(s) applying for a grant, a solicitor who is instructed to do so or someone engaged and authorised by that solicitor.
Where can I do the three searches required (e.g. application, caveat and wills) before I swear my Affidavit of Publication of Notice and Searches?
The Probate Office has computers you can use for the search, or you can do them on your home computer, local library computers or your mobile phone. The three searches must be done on the same day that you submit your application.
Where can I get information on completing an affidavit ?
If one or more of the named executors do not wish to apply for probate , but want to keep the right to remain an executor , do I have to include their current residential address in my affidavit?
Yes, this is a requirement.
What if I do not know the current address of a witness to a will?
In your affidavit, list the attempts you made to search for their address and state the outcome of your searches.
How long will it take to get my documents sworn at the Probate Office, my application lodged and the fee paid?
Allow about 10-15 minutes for this process. Make sure you have all your completed documents with you.
Can anyone get a copy of someone’s will?
If the application for probate has been granted then anyone can obtain a copy of the will. The Probate Office usually holds wills from the current and previous calendar years. If you need a will from an earlier date, contact the Public Records Office of Victoria.
How do I get a copy of a will?
If probate has been granted in the current or previous calendar year, you can request the Court’s file, which includes a copy of the will and other documentation in relation to probate. The current fee is $35.50. To request access to the file you can:
- Visit the Probate Office and complete a request form. The file will be made available at the Probate Office the next business day.
- Email firstname.lastname@example.org@etaborp with your request. We will reply when the file is ready for you to view at the Probate Office.
When you view the file, you can photocopy or scan any documents and save them on a memory stick. Photocopying costs 60c per page.
Can I store my will at the Supreme Court for safekeeping?
Yes. There is a one-off fee, currently $23.70 to store your will. The Probate Office will only release the will to the person who made it, the executor (s) or the executor(s)’ solicitor after a fee, currently $40.00 is paid and a supporting affidavit is provided.
Where can I get more help and information?
More detailed information is available on our website – click on ‘Wills and Probate’ from the home page. If you have a general question, Probate Office staff may be able to assist. However, the role of the Probate Office ends when a grant is issued. Our staff cannot give advice on how to administer an estate. Seek legal advice if you need help with this.
How do I contact the Probate Office? When is it open?
The Probate Office is located on Level 2, 436 Lonsdale Street, Melbourne. The office is open from 9:30am to 4pm Monday to Friday, except public holidays.