What is Probate?

Published: 18 Mar 2022
What is Probate?

What is Probate? Probate is the court process of a will being “proved” as the true last testament of someone who has passed away.

In the State of Victoria probate is granted by the Supreme Court of Victoria to the named executor or executors in the will, or if they are unavailable, the next of kin.

When obtaining a grant of probate, the original will is deposited with the Supreme Court and becomes a matter of public record, the will is then copied and attached to the Grant of Probate for the executor to commence the administration of the estate by following the will makers directions for how to administer their assets amongst their loved ones.

If someone passes away without a will, the next of kin can apply to court for Letters of Administration which is an application for a deceased estate where the person has died intestate (or without leaving a valid will). There are legislative rules set out regarding how an estate is divided if someone passes away without a will.

Generally, a grant of probate or letters of administration is the first step in the legal process of administering a person’s estate after they have passed away. It is a document that gives the executor or administrator authority to call in the deceased person’s assets, pay out any outstanding debts and then distribute the remainder to the beneficiaries of the estate.

My mum passed away recently; she has a will but didn’t own very much. Do I need a grant of probate?

There is no statutory requirement to obtain a grant unless the estate includes real property, meaning a house or land. Most banks, financial institutions and share registries (asset holder) will not insist on a grant to release or transfer cash in bank accounts if the value of assets is small.  Generally, if there is no land involved in the estate, you would write to all the asset holders for their requirements to release the assets before deciding whether to apply for a grant of probate or not.

If a grant is not required, generally the asset holder will ask for a copy of the death certificate and will along with verifying the identity of the person seeking the release of assets.

What does a lawyer do? How much will applying for a grant of probate cost me?

When a loved one dies it can be a disorienting and stressful time. Engaging a lawyer who is experienced in preparing the required Supreme Court application, contacting all the asset holders on your behalf and then administering the estate pursuant to the instructions under the will can ease some of the pressure you may be going through.

Generally speaking, an application for a grant of probate can cost anywhere between $800 to $2500 depending on the size of the estate and administering the estate can cost between $4000 to $8000. These fees are deducted from funds in the estate and are not borne by the executor or administrator of the estate.

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