When someone close to you passes away, there are a few important legal steps that need to happen to ensure the deceased’s wishes are carried out correctly.
Even if the person who passed away had a Will, the process is not always as simple as following its instructions. If they owned significant assets or property in their sole name, a process called probate is usually required.
Probate is a legally binding court order that confirms the Will is valid and authorises the executor to deal with the estate. Without probate, many banks, land registries, and financial institutions will not release assets.
The probate (also known as a grant of probate) process varies slightly between states. In this article, we explain how it works in Victoria.
Is Probate Necessary?
You may be wondering whether probate is necessary in your situation, as it is not always straightforward.
Probate is usually required if assets are owned solely by the deceased. This includes bank accounts, investments, and real estate held in their name only.
Banks and financial institutions often refuse to release funds or transfer ownership without a grant of probate. This protects them from liability and ensures the Will is valid.
If assets are jointly owned or another person is listed on the title or account, probate is usually not required. In these cases, the surviving owner can generally transfer the asset through a survivorship application.
Some assets may also sit outside the estate, such as superannuation or assets held in trust. These follow separate rules and may not form part of the probate process.
Who Applies for Probate?
The executor named in the Will applies for a grant of probate through the Supreme Court.
The executor is legally responsible for managing the estate and ensuring the Will is followed. This includes collecting assets, paying debts, and distributing inheritances.
It is usually best practice to engage a lawyer to assist with this process, as probate applications can be complex and time-sensitive. The application requires detailed documentation and strict compliance with court rules.
Complications can also arise during the process. These may include outstanding debts, caveats on property, missing documents, or disputes between beneficiaries. These issues can delay the grant of probate.
How To Apply for Probate
Contact us at Irvine Lawyers, and we can manage the probate process for you from start to finish.
We prepare and lodge the application, gather the required documents, and communicate with the Supreme Court on your behalf. This helps reduce delays and avoids common mistakes that can occur in self-managed applications.
Applying for probate requires attention to detail and a strong understanding of legal procedures. Even small errors can result in delays or additional costs.
For more detailed information, visit the Supreme Court of Victoria Wills & Probate website.