Probate in Victoria — A Practical Guide for Executors

A grant of probate is a sealed Court order made under the Administration and Probate Act 1958 (Vic). It does two things: it admits the will to probate (meaning the Court is satisfied the document is the last valid will of the deceased), and it confirms the authority of the executor to act. The grant is the document third parties — banks, share registries, Land Use Victoria, superannuation trustees — rely on before releasing assets.

Probate is not always required. Whether you need it depends on what the deceased owned and how it was held. Jointly owned property typically passes to the surviving owner by survivorship, superannuation is usually paid under a binding death benefit nomination, and small bank balances can often be released on production of the death certificate, the will and an indemnity. If any single asset holder insists on probate, the executor must apply.

The immediate priorities are practical rather than legal: arranging the funeral (the funeral director will register the death and order the death certificate), securing the deceased's home and vehicles, redirecting mail, and locating the original will. The original will is essential — the Probate Office will only grant probate of a copy in limited circumstances supported by affidavit evidence.

Notify the deceased's bank, superannuation fund, employer, Centrelink, Medicare, the Australian Taxation Office, share registries and any utility providers. Most institutions have a dedicated bereavement team and will freeze accounts on notification — this is normal and protects the estate, but it also means recurring direct debits will stop.

Before applying for probate the executor needs an accurate picture of what is in the estate. That means writing to each asset holder requesting date-of-death balances and instructions, obtaining a valuation of any real estate (a written market appraisal from a local agent is usually sufficient for probate; a formal valuation may be required for capital gains tax purposes), and identifying all liabilities including mortgages, credit cards, tax debts and funeral expenses.

The information collected is used to prepare the inventory of assets and liabilities that is filed with the probate application. The inventory is sworn — material understatements or omissions can expose the executor personally.

A probate application in Victoria is filed electronically through the Supreme Court's RedCrest probate portal. The core documents are: the originating motion, the affidavit of the executor (exhibiting the original will and any codicils, the death certificate and the inventory of assets and liabilities), and any supporting affidavits required by the circumstances — for example an affidavit of due execution where the attestation clause is defective, or an affidavit of plight and condition where the will has been folded, stapled or marked.

Before filing, the executor must publish a notice of intention to apply for probate on the Supreme Court's website. The application cannot be filed until 14 days have passed since publication. This window gives creditors and potential claimants the opportunity to come forward.

The Probate Office reviews every application and frequently issues requisitions — written queries that must be answered before the grant issues. The most common are: an unsigned or undated will, witnesses who are also beneficiaries (which affects the gift but not the validity), discrepancies between the name on the will and the name on the death certificate, missing assets or liabilities, and applications by alternate executors without proof that the primary executor cannot or will not act.

A clean, complete application avoids weeks of delay. Where there is any irregularity on the face of the will, the supporting affidavit should address it head-on rather than hoping the Probate Office will not notice.

Once probate issues, the executor calls in the estate's assets: closes bank accounts, sells or transfers shares, transfers or sells real estate (using a notice of acquisition lodged with Land Use Victoria), and claims insurance and superannuation where payable to the estate. Funds are held in a dedicated estate account, never mixed with the executor's own money.

Liabilities are paid in the statutory order of priority, including funeral and testamentary expenses, secured debts and unsecured debts. The executor should also prepare and lodge the deceased's final personal tax return and, if the estate earns income during administration, estate tax returns under a separate tax file number.

Distribution to beneficiaries should not occur within six months of the date of the grant if there is any prospect of a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic). Time runs for six months from the grant; distributing earlier does not stop a claim and can leave the executor personally liable.

A simple estate with a clear will, one or two beneficiaries and no real estate can sometimes be administered by the executor alone. Most estates benefit from legal assistance — particularly where there is real estate, blended families, business interests, overseas assets, missing beneficiaries or any hint of dissatisfaction with the will. The cost of probate work is recoverable from the estate and is usually small relative to the risks an executor carries personally.