The Law Handbook 2024

Chapter 9.4: Estates 907 Applying for a grant of probate Procedure Advertisement of executor’s intention The procedure for obtaining a grant of probate of a deceased person’s will starts with an advertisement of the executor’s intention to apply for probate at least 14 days later. This time frame allows the application to be contested. Since 2009, all probate and administration advertisements must be posted on the Supreme Court Probate Online Advertising System (www. supremecourt.vic.gov.au/wills-and-probate) . It costs $25.40 to publish an advertisement (until 30 June 2024). There is no fee to search the register for advertisements. Once filed on the Supreme Court’s website, the advertisement does not go stale. The following is an example of an advertisement. EXAMPLE Re [ EF ] deceased Take notice that [ AB ] [and CD ] the executor[s] named in the will dated [ insert date of will ] of [ EF ] deceased, late of [insert address] will 14 days after the date of publication of this advertisement apply to the Supreme Court of Victoria for a grant of probate of that will. [ Name of applicant or solicitor ] Probate applications All probate (and administration) applications must be filed electronically with the Supreme Court through RedCrest-Probate (www.supremecourt. vic.gov.au/wills-and-probate) . Applicants should check the ‘RedCrest-Probate e-Filing information’ page on the site to ensure all the court’s current requirements are met. The documents listed below are the ones to be created and filed electronically: 1 Affidavit in support of the application sworn by the executors: a full death certificate, the original will and an inventory (this is a list of the deceased’s assets and liabilities held in Victoria and elsewhere in the deceased’s name, valued at the date of death) are exhibits to this affidavit. 2 Affidavit of publication and searches: this affidavit is now dealt with by the Probate Office and does not have to be filed with applications made after 1 July 2020. 3 Originating motion: this summarises the particulars of the application. 4 Order for probate. These forms are generated by the RedCrest-Probate e-Filing system after applicants enter the relevant information. All these documents must be in the form set out in the A&P Rules. The Probate Office’s website sets out examples of these forms. Within 28 days after the application for probate is submitted, the original will (that was exhibited to the affidavit in support) must be filed in the office of the Registrar of Probates. If the order for probate is made by the Probate Office, an email will be sent advising and recording that the grant has been made with the grant attached to the email. Until 30 June 2024, filing fees are $66.80 (where the estate’s gross value is less than $500,000) or $357.80 (where the estate’s gross value is between $500,000 and $1 million) or $667.80 (where the estate’s gross value is between $1 million and $2 million). The registrar has the discretion to waive fees in cases of hardship (s 129(3) Supreme Court Act 1986 (Vic)). Affidavits must be sworn before a person authorised under section 19 of the Oaths and Affirmations Act 2018 (Vic). Solicitors are persons who are so authorised. The office of the Registrar of Probates can supply the names of people able to witness affidavits. Probate operates from the date of the grant of probate as appears on the grant document. However, an executor’s authority runs from the date of death, unlike an intestacy, where the administrator’s authority begins from the date of the grant of administration. Time for payment of debts Creditors to the estate and beneficiaries may have to wait until after the statutory notice to claimants of not less than two months under section 33 of the Trustee Act has expired before they receive payment. The purpose of this notice is to avoid any late claims being made against the estate, and it