Has one of your loved ones recently passed away with a valid Will and you are wondering how to distribute their Estate? You may need a lawyer to assist you in the application process to obtain a Grant of Probate.
You might be wondering what ‘Grant of Probate’ means.
A Grant of Probate is a legal process whereby a grant is issued by the Supreme Court, which provides authority to the Executor(s) named in the Will to administer and finalise the Estate.
The necessity to apply for a Grant of Probate is dependent on the assets in the deceased’s name. There may be real estate involved or it may be a requirement of another institution, for example, Bank, Aged Care Facility etc. A Grant will provide reassurance to the institution that they are working with an individual who has legal authority to deal with the deceased’s assets whilst being able to confirm the validity of the Will.
So, how will you know a Grant is required?
In simple terms, if there is real estate owned in the deceased’s sole name, you will be required to obtain a Grant of Probate. Land Victoria will not permit the transfer of property to the Legal Personal Representative (ie the Executor) of the Estate, or to a beneficiary, or for the property to be sold, without first being supplied with a Grant of Probate.
We find that each bank has different policies about releasing funds. As a general rule, banks will typically require a Grant of Probate if the combined value of the account/s is more than $20,000.
| Asset | Ownersship | Probate Required? |
| Real Estate Property | Sole name | Yes |
| Tenants in Common | Yes | |
| Joint Tenants/Joint Proprietors | No | |
| Bank Account | Sole name (less than $20,000 in total) | No, but can differ between institutions. |
| Sole name (more than $20,000 in total) | Yes | |
| Joint Names | No | |
| Refundable accommodation bond (aged care) | Yes, but can differ between institutions | |
| Vehicles | No | |
| Person Possessions | No | |
| ASX Shares | Joint Names | No, refer to accountant or share broker |
| Sole Name | Yes (depending on institution and value) | |
| Shares in a non-listed Company | Joint Names | No, refer to accountant |
| Sole Name | Yes, depending on value |
An exception to these above rules is if the property or bank account is held jointly with another person, often a spouse or partner. This means the laws of survivorship apply and the person who survives the longest is the one who automatically keeps the asset. Whilst there is some minimal paperwork to be done, a Grant is not required to transfer property or to have the deceased’s name removed from an account.
What is the process for applying for a Grant of Probate?
Before we can apply for the Grant of Probate on your behalf, we need to advertise our intention to apply on the Supreme Court website. We are required to wait 15 days from the date of the publication before we can submit the Probate Application. This will require swearing or affirming an Affidavit of Executor to prove the Will and show the Supreme Court the deceased’s assets and liabilities. To prepare the Affidavit we will need to obtain from you the original Death Certificate, the original Will, some information about the marital and family status of the deceased, as well as details about the deceased’s assets and liabilities.
Upon a Grant of Probate being obtained an Executor can then commence administering the estate by calling the assets and distributing the estate to the beneficiaries.
If someone you love has recently passed away or you are an Executor of an Estate requiring assistance, please contact one of our experienced staff members at either our Warragul or Drouin office to guide you through.
Authors:
Emily Farr – Lawyer
Elyse Chandler – Probate and Accounts Clerk
Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.
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