What is a grant of probate?
A grant of probate is a declaration by the Supreme Court that the will submitted to it is the last known will of the deceased, and that the executor(s) is entitled to administer the estate in accordance with the will.
It is the responsibility of the executor named in the will to apply for a grant of probate and distribute the estate in accordance with the terms of the will. Typically, an estate cannot be administered without a grant of probate. For instance, a grant of probate is usually required to transfer real property out of the deceased’s name or to close bank accounts owned by the deceased.
In order to obtain a grant of probate, you will need the deceased’s death certificate and basic details of the deceased’s assets and liabilities in order to prepare the necessary court documentation. If you require any assistance in preparing an application for a grant of probate, then you should contact our Wills & Estates team.
What happens if there is no will?
If a person dies without a will then they are said to have died ‘intestate’, which means their estate will be administered and distributed in accordance with the rules of intestacy.
The rules of intestacy outline how an estate is to be distributed between a deceased person’s partner, children and other relatives. If a person dies intestate in Victoria, then a summary of how their estate will be distributed in accordance with the rules is as follows:
- If the deceased is survived by a spouse/partner and no children, the spouse will receive the whole of the estate.
- If the deceased is survived by a spouse and children and the children are also children of the surviving spouse, then the spouse will receive the whole of the deceased’s estate.
- If the deceased is survived by a spouse and a child or children who are not children of the surviving partner, then:
(a) The spouse will receive:
i. the deceased’s personal chattels (ie belongings);
ii. a statutory legacy of approximately $451,909, plus interest from the date of death until it is paid; and
iii. one half of the balance of the residuary estate.
(b) The children will receive one half of the residuary estate remaining, in equal shares.
- If the deceased is survived by multiple partners, then the partners will receive an equal share of the estate, subject to any other distribution order or agreement reached.
- If the deceased is not survived by a spouse but is survived by a child or children, then the estate is to be distributed to the child or children in equal shares.
- If the deceased is not survived by a spouse or children, then the estate will be distributed to the deceased’s parents.
- If the deceased is not survived by a spouse, children or parents, then the estate will be distributed in the following order of priority:
(a) to the deceased’s siblings;
(b) to the deceased’s grandparents;
(c) to the crown, if there is no one else entitled to receive the estate.
If a person dies without a will, then a person with an interest in the estate will need to obtain a grant of letters of administration upon intestacy from the Supreme Court. The grant of letters of administration will authorise the applicant to distribute the estate in accordance with the rules of intestacy.
How long does it take to obtain a grant of probate/letters of administration?
There is no set time limit for how long it takes to obtain a grant of representation. This is because a number of variables may impact upon how long the process can take.
In order to obtain a grant of representation, an executor/administrator will require a death certificate. Typically, it takes four to six weeks from the date of death for a death certificate to issue. Sometimes, it can take substantially longer if there are issues with the deceased’s cause of death.
Once an executor/administrator has obtained a death certificate, they must first advertise their intention to apply for a grant of representation on the Supreme Court website. After 14 days of publishing the notice, an executor can then file an application for a grant of probate in Court.
In order to file a probate application, an executor/administrator will need to prepare an affidavit that outlines the details of the deceased, the details of the will (if there is one), and the assets and liabilities of the estate. Sometimes, this affidavit can be quite detailed and require a significant amount of time to prepare.
Once the necessary documentation has been filed in Court, it can take up to four to six weeks for a grant of probate to issue. If the Court has any queries regarding the application or if there are errors in the application, then the Court will not issue a grant until the queries or errors are rectified.
What can I do if an executor/administrator refuses to apply for a grant of probate?
If an executor is refusing to apply for a grant of probate, then it is possible to file an application in Court, which will force the executor to bring the will into Court.
In order to succeed with the application, you must show that the executor is in possession of the will and outline the steps you have taken to get the executor to apply for a grant of probate. The Court will not make an order requiring an executor to bring a will into Court unless it is satisfied that you have first made reasonable attempts to compel the executor to apply for a grant of probate.
Provided there is evidence of the executor’s delay or refusal to apply for a grant of probate, this can be a useful tool to ensure an executor behaves in a timely manner.
What are the duties of an executor/administrator?
The executor is the person appointed by a testator to administer and carry out the terms of their will. Sometimes, a person named as an executor may be unable or unwilling to accept their role. If this is the case, then another person with an interest in the estate will need to apply for a grant of letters of administration and they are referred to as the administrator.
An executor/administrator is responsible for:
- arranging for the deceased’s funeral/cremation, unless the deceased has made some other arrangement with a funeral home;
- collecting and securing the deceased’s assets to ensure they are not lost, stolen or damaged;
- ascertaining and compiling details of the deceased’s outstanding liabilities and expenses;
- obtaining a grant of probate/letters of administration;
- notifying the beneficiaries of an estate of their entitlements under the will or rules of intestacy;
- responding to any litigation or claims filed against the estate. For examples of the types of claims that can be filed against an estate, please see our sections on ‘contesting a will’ and ‘challenging a will’, which can be found here;
- managing the estate’s taxation affairs, including paying any outstanding tax debts and lodging tax returns;
- distributing the estate to the beneficiaries under the will/rules of intestacy.
An executor/administrator is an important fiduciary position, which means an executor/administrator has a serious obligation to act in the best interests of the beneficiaries of the estate. This imparts a strong obligation on an executor/administrator to maximise and preserve the value of the estate as much as possible.
Examples of how an executor can preserve the value of an estate include:
- ensuring that estate bank accounts are invested in interest-bearing term deposits pending the finalisation of the administration of the estate;
- ensuring that estate properties are safe and secure (in some certain circumstances, it may be appropriate to rent out estate properties to ensure the estate is earning income);
- ensuring that estate liabilities and expenses are paid and not accruing penalty/default interest;
- resolving / compromising claims filed against the estate, where it is reasonable to do so.
What can I do if an executor is not complying with their duties and obligations?
If an executor is behaving improperly and breaching their obligation to act in the best interests of the estate, then it may be possible to have the executor removed and replaced with someone who is more appropriate.
In order to have an executor removed, you must be able to demonstrate that the executor’s conduct is jeopardising the ongoing administration of the estate. This can often be difficult to prove, as the Court does not make a decision to remove an executor lightly.
Examples of conduct that has warranted the removal of an executor by the Courts include:
- significant or unreasonable delay (eg not transferring a property to a beneficiary in accordance with the will);
- preferring the interests of certain beneficiaries over others;
- misappropriating (stealing) estate assets;
- conflicts of interest (eg where the executor earns a profit by investing estate funds in their own business);
- failing to provide estate accounts regarding the administration of the estate.
In certain circumstances, there may be more than one executor appointed under the will. If the executors cannot make decisions jointly and their inability to reach an agreement is delaying the administration of the estate, it may be appropriate for the executors to be removed and replaced with an independent administrator.
What can I do if I am an executor and there is an issue regarding the estate that I cannot resolve?
Administering an estate can be a long and complicated process. Significant issues often arise, which can complicate the administration of the estate.
Accordingly, an executor has the power to apply to the Supreme Court for advice and guidance on an issue that has arisen during the administration of the estate.
Examples of the issues the Supreme Court can advise on include:
- whether an asset (eg a property) forms part of the estate;
- whether a person falls within a class of beneficiaries in a will;
- whether multiple wills exist and uncertainty surrounds which will should be admitted to probate;
- whether it is appropriate for an estate asset to be sold.
Can a grant of probate/letters of administration be revoked?
It is possible to have a grant of probate/letters of administration revoked. However, the Court will only do so if there is valid reason for the grant to be revoked.
Examples of where the Court will revoke a grant include:
- where the executor is guilty of misconduct / non-compliance with their obligations as outlined above;
- where the will admitted to probate is invalid. For reasons why a will may be declared invalid, please see our section on challenging wills and will caveats here;
- where a later will is subsequently found;
- where the person who applies for the grant does not have capacity or is disqualified from acting;
- where the Court issued the grant by mistake.
In order to succeed with an application to have a grant revoked, you will need evidence to support your application. This evidence would include information regarding:
- the size of the estate, the details of the beneficiaries and whether the estate has been administered;
- the reason why you are seeking to have the grant revoked (eg evidence of the executor’s misconduct).
If you are seeking to revoke a grant on the basis of an invalid will, you will need to explain to the Court why you did not file an application before the grant had issued.