Probate of a will is the certification of a will’s legality and validity. Without a probate, the executor of the will cannot administer the estate. It helps to avoid delay and the risk of the will being contested, which can prevent genuine beneficiaries from receiving the assets willed to them by the deceased person. Anyone can apply for probate, but it is recommended that you work with an experienced lawyer who is knowledgeable in wills and estates. They can guide you through the process and assist with the application with the Supreme Court of Victoria.
What does Probate mean
Probate is a legal document that certifies that a will is valid and can be acted upon. Without a probate, the executor of the will cannot administer the deceased person’s estate and distribute assets to beneficiaries. A probate also confirms the appointment of the executor. It is a critical legal step in creating a will.
A probate is a type of grant of representation. A grant of representation gives a person the legal right to administer the estate of a person who has died. In addition to probates, there are also letters of administration, which take effect when there is no will.
Why do you need a Probate of a Will?
A probate is required for a will to be considered legal. It gives the executor of the will the ability to begin the process of distributing assets and dealing with any other administration that needs to occur when someone dies, such as settling debts. Without the probate, the executor or administrator can’t distribute the assets to beneficiaries.
If it is unclear if there is a grant of representation, the deceased person’s bank accounts will be frozen until this can be determined. However, it is usually still possible to pay for the funeral using their funds.
If there is no will, or the person died intestate, then there will be no executor to administer the will. When this happens, the next of kin (usually a spouse or a child) can apply for letters of administration. The court will need to approve this. Letters of administration give the next of kin the ability to distribute assets in a way determined by the law.
If there is no next of kin, or no one wants to administer the estate, the court will request that an external body (such as State Trustees) manage this.
There are some potential problems that can come up when applying for probate, which the executor of the will should be aware of. A will can be challenged when there is no probate in place, so it’s advisable to get the grant of probate as soon as possible.
Wills can be contested or challenged when someone believes that the will was made when the person did not have capacity to do so. They can also be contested if someone thinks that there was undue influence exerted during the will making process, or someone convincing or forcing the person writing the will to do something they wouldn’t want to do.
How to Apply for Probate
To apply for probate, you must be over 18 years of age and be an executor named in the will. There are a few ways to obtain a grant of probate in Victoria.
The most common method is to instruct a solicitor to act of your behalf. An experienced lawyer will be able to determine whether a probate is required, determine which type of grant of representation is needed, complete the application and upload all necessary documents with the Supreme Court of Victoria.
If you choose not to work with a lawyer, an authorised trustee company can act as executor and apply for probate, or you can do it yourself.
A notice of an intended application (advertisement) for a grant must be published on the probate online advertising system at least 15 days before filing an application with the Probate Office. This can be completed by your lawyer.
It can be difficult to get a grant of probate when you don’t have a proper copy of the will to work with. Issues include the will not being witnessed legally, the will being damaged, the will not meeting other requirements for legality, or the will being a copy because the original can’t be located. It is always best to have the original, best possible copy of the will that has been prepared in consultation with a lawyer.
Do I Need to Work with a Lawyer?
A lawyer with experience in wills and estates can assist you to apply for probate and ensure that the process of distributing assets in line with the will of the deceased person goes smoothly.