What is the statutory legacy?
An amount determined by section 70M of the Administration and Probate Act 1958 that a partner of a deceased is entitled to as part of their entitlement if the deceased leaves a partner and a child or other issue who is not the child or other issue of that partner.
What is the amount of the statutory legacy?
The date of death determines the applicable statutory legacy amount. From 1 July 2021, the amount of the statutory legacy is $486,870. The statutory legacy was introduced on 1 November 2017. Previous statutory legacy amounts are as follows:
|1 November 2017 – 30 June 2018||$451,909|
|1 July 2018 – 30 June 2019||$461,780|
|1 July 2019 – 30 June 2020||$471,240|
|1 July 2020 – 30 June 2021||$480,700|
For deaths prior to 1 November 2017, it is suggested you obtain legal advice to determine who is entitled to share in an estate.
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.
What is the Small Estates service?
If a person dies leaving property and/or assets valued at less than $112,970 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 $318.60 (current at 1 July 2021). 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. 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?
Applications for Probate are made via RedCrest-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.
How do I get a copy of a will?
For information about obtaining a copy of a Will, please visit the searching probate records page.
Can I store my will at the Supreme Court for safekeeping?
Yes. In light of the COVID-19 coronavirus pandemic, please contact the Probate Office by telephone to discuss your options: (03) 8600 2000 (option 1).
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.