Dealing with the legal matters following the loss of a loved one can make a challenging time even more overwhelming. While the probate process may seem complex, it is designed to ensure that the wishes of the deceased are carried out respectfully and efficiently.
By understanding each stage of the probate process, you can navigate it with confidence and ensure your loved one’s legacy is honoured according to their wishes. In this comprehensive guide, we’ll walk you through the probate process step by step, providing you with the knowledge and confidence you need during this sensitive period.
What is probate?
Probate is the legal process by which the Supreme Court of Victoria validates a deceased person’s will. It can also be referred to as a grant of probate as it grants authority to the executor to administer the estate and distribute assets according to the will’s requests. Probate grants are now typically all digital.
Is probate always required?
Not always. Probate is necessary if an asset holder or agency requests it to recognise the executors or manage the asset distribution. This usually includes banks if the deceased held a high-figure account, share registries with large portfolios or the land titles office if the estate includes property.
Executors may also with to obtain probate if they suspect someone may make a claim on the estate, such as a family member or creditor.
Probate is usually not required when the estate is small and no trouble is expected from third parties, such as banks or family members.
Is a lawyer required to apply for a grant of probate?
The executor can apply for probate on their own, but given the formal and often confusing legalities of the process, a lawyer is recommended to save time and money in the long run. In fact, 95% of applications are performed by lawyers (and for good reason).
What’s involved in obtaining a grant of probate?
Step 1: Publishing an online advertisement of your intention to apply for probate
In order to give stakeholders the opportunity to dispute the will if required, you must notify the Probate Online Advertising System (POAS) of your intention to apply for probate. The advertisement needs to be online for at least two weeks before you can proceed with lodging the application.
Step 2: Lodging the Application
The first step in the probate process involves lodging an application with the Supreme Court of Victoria through their online portal, RedCrest-Probate. The application includes various documents, such as the original will, a certified copy of the death certificate, an affidavit of executor, an inventory of assets and liabilities, and a copy of the advertisement for intention to apply. This application provides the court with the necessary information to assess the validity of the will and grant probate.
Step 3: Court Assessment
Once the application is lodged, the court reviews the documents and assesses the validity of the will. This involves verifying that the will meets the legal requirements, and that the executor is the appropriate person to carry out the deceased’s wishes. The court may request additional information if necessary.
Step 4: Grant of Probate
Upon satisfying the court’s requirements, a Grant of Probate is issued. This legal document confirms the court’s recognition of the will’s validity and the executor’s authority to administer the estate. With the Grant of Probate in hand, the executor can proceed with the distribution of assets as outlined in the will.
Step 5: Finalising the Estate
Once all assets have been distributed, the executor prepares a final account and statement of distribution, outlining how the estate was managed and how the assets were divided. Beneficiaries may have the opportunity to review and provide feedback on these documents.
How long does the probate process take?
It depends on the volume of applications at the time as well as the specific details of your case, but processing time is typically between two and four weeks from the submission of documents. This can be dragged out if the files are incorrect or other issues arise.
