Have you been nominated as Executor in your next of kin’s Will? Would you know how to fulfil your loved one’s last wishes? Would you know the process of gaining a grant of probate? How would you go about accessing bank accounts and distributing assets in your loved one’s name?
This blog outlines the process of obtaining a grant of probate or letters of administration in Victoria. It’s important to note that each state has its own laws in regards to estate planning, and we would highly recommend that if you find yourself in this situation, you contact an estate planning lawyer based in your state to assist you through the process.
Grant of Probate
The first step is to ascertain if you are actually required to obtain a grant of probate or not. If there are no assets based within Victoria, you might not necessarily need to obtain a grant of probate to deal with the deceased estate.
A grant of probate is only required if assets have been left behind and the institution that holds the assets e.g. a bank or building society or some other financial institution etc, require that a grant of probate or letters of administration be obtained prior to them allowing the Executor to access and distribute the assets in accordance with the wishes contained in the deceased’s Will.
The Supreme Court of Victoria’s website outlines the steps for obtaining either a grant of probate or letters of administration and we highly recommend reading through the information contained on their website.
Letters of Administration
The main difference between a Grant of Probate and Letters of Administration is whether the deceased person has left a valid Will and has nominated an Executor over the age of 18 who is willing and able to make an application for a grant of probate. If neither of these requirements applies, then the closest next of kin will have to make an application for Letters of administration instead.
This process is quite different and less straightforward than applying for a grant of probate, so that’s why we always recommend that you have an up to date, valid Will and have appointed an Executor that is willing and able to carry out your wishes after your death.
The first step in applying for letters of administration is that you will have to prove that you are the deceased’s closest next of kin and therefore the most relevant person to be making the application. On the website it sets out who the Probate Office considers being the closest next of kin, starting with the deceased’s lawful spouse right through to grandchildren and brother and/or sisters of the deceased. When applying for letters of administration, we would suggest it is even more imperative that you seek the advice of a legal expert to ensure that you follow the correct procedure.
Advertising Your Intention to Make an Application
Once you ascertained which type of application you will need to make, you are required to then advertise your intention to apply for same on the Probate Online Advertising System.
You will need to advertise not less than 14 clear business days before filing your application with the Probate Office and you will need to include proof of your advertisement and the date of same when you attend at the Probate Office to file your application form.
Forms to Complete
The next step is to complete the relevant forms for either your application for a grant of probate or letters of administration. These forms can be downloaded from the Supreme Court of Victoria’s website.
You must read the instructions on how to complete the forms very carefully, as the Probate Office may reject your application if the handwriting is illegible or not in permanent black or blue pen etc, or if you do not have the correct supporting documentation with your application form.
Filing Your Application at the Probate Office
Once you’ve completed these steps, you must file your application form and all other relevant paperwork in person at the Probate Office. A filing fee will also be payable at the time of making your application, and you may have to produce original documents such as the Will, death certificate and any other required Affidavits.
As you can see from the above, the process of obtaining a grant of probate or letters of administration can be complex and arduous. In the majority of cases, the application for a grant of probate or letters of administration are made through estate planning lawyers.
As always, we would suggest engaging a lawyer to make this process as smooth and easy as possible.
If you would like to book a Quick Match or request a quote, please follow the links on the Legally Yours website.
This article is written by Karen Finch and was first published on the Legally Yours website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.