The Law Handbook 2024

904 NOTE The law in this chapter is current as at 1 September 2023. Introduction This chapter provides basic information about administering the estate of a deceased person. It is not intended that the chapter be used as a do-it-yourself kit, as in the majority of cases legal advice should be obtained. This chapter is designed to inform persons that find themselves appointed as executors or administrators about the obligations, procedures, expenses and potential difficulties involved in administering estates. Probate As mentioned in Chapter 9.3: Wills, when a person dies leaving a will, a grant of probate must be obtained. The grant is approval by the Registrar of Probates on behalf of the Supreme Court of Victoria that the deceased’s will is in fact the last valid will in existence and that the person named in the grant (the executor or administrator) is entitled to collect and distribute the estate of the deceased. The majority of wills are proved in ‘common form’. This occurs where there is no dispute about the validity of the will. Probate in these cases is granted when certain documents are filed with the Probate Office (see ‘Contacts’ at the end of this chapter), without any court proceeding being necessary. If, however, there is any challenge, or the possibility of a challenge, to the validity of the will, it is necessary to prove the will in ‘solemn form’, which involves formal Supreme Court proceedings before a Justice of the Court. Letters of administration Where there is no will, or a will is executed but does not appoint an executor, letters of administration must be obtained before the estate of the deceased may be collected and distributed. The procedure is similar to that required for obtaining a grant of probate. Where letters of administration are granted, the person that receives the grant is called the administrator. A grant of representation (or simply ‘a grant’) means either a grant of probate or a grant of letters of administration. Probate and estate duties Victorian probate duties were completely abolished by 1984 and federal duties in 1979; therefore, no formalities in that regard are now required at either state or federal level. Need for a grant of probate or letters of administration A grant of probate or letters of administration is essential to enable the ‘legal personal representative’ ( LPR ) (either the executor or administrator) to obtain the title to the deceased’s property and then to collect, administer and protect it for the benefit of those interested in the estate. These may be creditors, beneficiaries or next of kin. The production of the grant is the only way the LPR can prove title to the deceased’s assets, so they can be dealt with. For example, the deceased may have had a bank account, and banks will only allow an LPR to access a deceased’s account if they have received a grant. Similarly, Land Use Victoria (formerly known as the title’s office) will only allow the LPR to deal with the deceased’s real estate if they have received a grant. A grant protects the LPR (and the beneficiaries) if a later will is found or if someone disputes the validity of the grant. 9.4 Estates Contributor: Justin Rizzi, Barrister