Probate Registry (Vic)
The Probate Registry Office of the Supreme Court of Victoria reviews and holds records of applications for probate grants. When someone dies in Victoria, an executor or prospective administrator must check with the Probate Registry to see if the court has already issued a grant in relation to the deceased, and if no current grant exists, then apply for the appropriate grant. This article outlines the importance of the Probate Registry in the administration of deceased estates in Victoria.
What Is Probate?
Probate is a term used to describe the legal process of validating a will and marks the official start of the wind up of a deceased person’s affairs. A grant of probate is a court order officially recognising the validity of a will, and an executor’s authority to administer the estate.
The Administration and Probate Act 1958 stipulates that a probate grant can only be issued for the administration of a deceased who lived in Victoria before their death or who owned real property within the state.
Probate Registry Grants
The Probate Registry of the Supreme Court of Victoria issues several different types of grants, contingent on the testamentary circumstances of the deceased. A Grant of Probate is issued to one or more appointed executors named in a current and valid will. If the named executor cannot apply for the grant then an eligible party can apply for Letters of Administration With The Will Annexed. If, on the other hand, a deceased has died without making a will (that is, they are intestate), or their will is found to be invalid, then a close relative needs to apply to the Probate Registry for Letters of Administration.
Applying To The Probate Registry
The personal representative (executor or administrator) must file certain court documents in the form of an application with affidavits, including an inventory of the deceased’s assets and liabilities, an affidavit stating that the representative has conducted appropriate searches and published notices, and the final order. The Probate Registry requires that these court documents are completed with great accuracy and filed in adherence with the court’s procedure rules.
The Notice Of Intention To Apply
Before an applicant can file for a probate grant in Victoria, they must first advertise their intention to apply on the Probate Online Advertising System (POAS) of the Registry for 14 days. The advertisement is the basis of all probate applications in the state and needs to be carefully drafted. There are procedural rules that govern the wording of the Notice of Intention to Apply, specifically, the advertisement must note:
- The names of the deceased and applicant, in all previously known forms
- The permanent address of the deceased before their death
- The nature of the application
- If there is a valid will
- If a named executor has passed away or legally renounced their responsibility
- If the applicant is reserving leave for another executor to come forward in the future
- The number, nature and date of any testamentary papers (wills and codicils), including whether any of these documents were previously revoked. Any undated documents should be assigned an estimated date.
How Long Does Probate Take?
The Probate Registry of Victoria typically issues a Grant of Probate or Letters of Administration within three weeks. However, the personal representative should be aware that the preparation of the application could take months. An executor or administrator is responsible for the following preparatory tasks:
- Obtaining an original death certificate or Interim Death Certificate
- Identifying and assigning a value to the assets of the deceased and making a list of the liabilities of the estate.
- Contacting financial institutions that hold the assets of the deceased
- Lodging an advertisement on the POAS of the Registry
When Is It Not Necessary To Apply To The Probate Registry?
It is not always necessary to make an application to the Probate Registry if the testamentary circumstances of the deceased do not warrant the need for a grant. A grant is needed primarily to authorise asset holders, such as financial institutions, to release the assets of the deceased to the executor or administrator.
If the estate of the deceased has a small monetary value, or the deceased has arrangements in place for the automatic transfer of their major assets after death, then a grant may not be necessary. For instance, if the deceased made arrangements for a Binding Death Benefit Nomination (BDBN) on their life insurance payouts and superannuation benefits, then the beneficiary will receive the funds immediately upon the death of the account holder.
If the only property that the deceased owned when they died was held in joint tenancy with someone else, then the deceased’s share of the property does not form part of the deceased estate. Instead, it passes directly to the surviving spouse through the Right of Survivorship.
The process of preparing an application to the Probate Registry can be time-consuming and complicated. The specialist team at Armstrong Legal can help you navigate the complex field of probate law, so please call 1300 038 223 or message our team to make an appointment.