This article was written by Serenay Kalkan - Associate – Melbourne

Serenay joined the Armstrong Legal team in March 2014 and has gained extensive experience in wills and estates law across Victoria, South Australia and Western Australia, in addition to being involved in complex will dispute matters. She has graduated with a Bachelor of Laws from Monash University in November 2016 and was admitted to practise in August 2018. Armed with...

Who Is Entitled To Apply For A Grant Of Probate?


Only a person who is named as an executor in a will is entitled to apply for a grant of probate. In situations where a will does not name an executor, or the named executor(s) is unwilling or unable to act as the executor, then usually a beneficiary or appropriate independent person must apply for a grant of Letters of Administration with the Will annexed to the application.

Multiple executors

In some cases, the deceased will nominate more than one person to act as the executor of their estate. Some states set a limit of up to four executors. However, in other states there are no limits on the number of executors that can be named in a will.

Substitute executors

The deceased may also nominate alternate executors. This is where the deceased names a substitute executor to act in the event that the first-named executor predeceased them or is unable or unwilling to act.

Where a substitute executor applies for a grant of probate, it will be necessary for the substitute executor to provide the court with a copy of the predeceased executor’s death certificate or signed renunciation of Probate.

What to do before applying

Before making an application to the court for a grant of Probate, the executor or substitute executor should ensure that all conditions have been met, such as ensuring that there are no later will or codicils or that the preconditions for the substitute executor to step in have been met. If these steps are not taken, the application may be rejected and the cost of the application will not be reimbursed to the estate.

Who makes the application?

If more than one person is named as executor, then generally all of the executors will make the application for a grant of probate together. If one of the executors has died or does not wish to apply for probate, then the remaining executors will apply for a grant of probate. An explanation must be given to the Court as to why only some of the named executors are applying for a grant of probate. In situations where there are multiple executors and one executor is unwilling to apply for a grant of Probate but also refuses to renounce Probate, the remaining executors may seek a grant of Probate to themselves with leave reserved for the other executor to come in and take a grant at a later date.

An explanation will also be needed if the executor’s name differs to the name in the deceased’s will. For instance, if the executor married after the will was drafted, the executor must submit a copy of their marriage certificate with the application for a grant of probate to explain the change in name.

Renunciation of probate

If an executor does not wish to apply for a grant of probate, they may renounce probate. Renunciation of Probate involves the executor executing a form which will be submitted to the court as part of the application for a grant of Probate or Letters of Administration with the will annexed.

Not all wills are simple and determining who is entitled to apply for a grant of probate can become quite complex in certain situations. If you would like to discuss whether you are entitled to apply for a grant of probate please call one of our lawyers on 1300 038 223 or send us an email.

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

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