Being appointed an executor or trustee in a will may seem an honour. After all, you’re being asked to stand In the willmaker’s shoes and dispose of their assets when he or she is unable to do so themselves. And, though it may be considered the ultimate sign of trust, it also comes with a great deal of responsibility – both moral and legal, so it’s best to know your obligations before agreeing to the task.

Applying for a grant of probate

Last updated

1 July 2020

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 in 14 days’ time. This time frame allows the application to be contested. 

Since 2 September 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 $23.70 to publish an advertisement (until 30 June 2021). There is no fee to search the register for advertisements. 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

From 1 July 2020, all probate (and administration) applications must be filed electronically with the Supreme Court through the court’s website (www.supremecourt.vic.gov.au/wills-and-probate). Applicants should check the ‘Electronic 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 (which is a list of the deceased’s assets and liabilities held in Victoria and elsewhere in the deceased’s name only) 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.

All these documents must be in the form set out in the Supreme Court (Administration and Probate) Rules 2014 (Vic) (‘A&P Rules’) and by the Probate Office’s website (www.supremecourt.vic.gov.au/wills-and-probate), which sets out examples of these forms. 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.

Until 30 June 2021, total filing fees are $325.10 (where the estate’s gross value is up to $1 million) or $606.90 (where the estate’s gross value is up to $2 million), depending on the size of the estate and the number of pages in the will. 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 written on the document.

However, an executor’s authority runs from the date of death, unlike an intestacy, where until a grant is obtained, the administrator’s authority only dates from the date of the grant of administration.

Time of payment of debts

Creditors to the estate or beneficiaries may have to wait until after the statutory notice to claimants under section 33 of the Trustee Act has expired before they may receive payment. The purpose of this notice is to avoid any late claims being made against the estate, and it should be placed in the legal notices advertisement pages of a daily newspaper. Where the assets of the estate are more than $2000 the advertisement should also appear in the Government Gazette (s 33 Trustee Act).

The following is the form of the notice, which is set out in schedule 2 of the Trustee Act:

Example

[Insert name, address and occupation of deceased]

Creditors next of kin and all others having claims in respect of the deceased who died on the [date of death] are required by the executors [names and addresses] to send particulars of such claims to the said executors by [date] after which date the executors will distribute the assets having regard only to the claims of which they have notice.

This notice cannot operate to exclude any legitimate claim by a creditor but protects the executor distributing the estate in good faith without notice of a claim and any genuine purchaser from the estate.

If claimants come forward as a result of the advertisement, the executor must either pay the debt if it is payable or, if disputed, the creditor must be notified to take proceedings to claim the debt from the estate within three months (s 30 A&P Act). If no proceeding is issued within three months, the executor must go to the Supreme Court and obtain an order barring the claim.

It now remains for the executor to carry out the terms of the will and distribute the estate to the beneficiaries. Specific bequests, such as furniture, jewellery and pictures, are to be handed to the legatees and cash distribution arranged from the sale of assets. Unless the will contains a specific power to do so, the willmaker’s estate cannot be sold by the trustees but must be transferred to the beneficiary entitled to the real estate, unless they authorise the trustee to sell.

Where a beneficiary is a minor (under 18 years old) the bequest must be held until the beneficiary reaches 18. There are, however, certain circumstances when amounts may properly be paid to the parents or guardians of a minor for that person’s maintenance and general benefit. This depends on the wording of the will. Section 37 of the Trustee Act allows the executor to pay or apply all the income of an infant’s share for that person’s benefit while the infant is under 18 years old. Section 38 of the Trustee Act also allows the advancement of up to half the capital of an infant’s share for the infant’s benefit.

The executor should consider the likelihood of any person making an application for provision out of the estate under Part IV of the A&P Act. These claims must be brought within six months of the grant of probate or administration. If there is any prospect of a claim being made, the estate should not be distributed until after the six-month limitation period for such claims has expired, as the executor will be personally liable to a successful claimant if the estate is distributed before the limitation period has expired.

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