Probate & Estate Administration

Probate is the formal recognition by the Supreme Court of Victoria that a will is valid and that the executor named in it has the authority to administer the estate. It is required whenever an asset holder insists on it before releasing or transferring property — typically banks above their internal threshold, the share registries, Land Use Victoria for real estate held in the deceased's sole name, and superannuation funds where the benefit is paid to the estate.

Probate is generally not required for jointly owned real estate (which passes by survivorship), superannuation paid under a binding death benefit nomination to a dependant, or small bank balances released against the death certificate and an indemnity. Where any single significant asset requires probate, the application must be made.

Being appointed an executor is a fiduciary office with personal exposure. We act for executors from the first days after death — locating and securing assets, obtaining valuations, calling in date-of-death balances, advertising the notice of intention to apply, preparing the originating motion, executor's affidavit and inventory of assets and liabilities, and lodging the application electronically through RedCrest.

After the grant issues we assist with closing bank accounts, transferring or selling real estate via notice of acquisition to Land Use Victoria, dealing with shares and managed funds, claiming superannuation and life insurance, and paying liabilities in the statutory order of priority. We coordinate with the estate's accountant on the deceased's final personal tax return and any estate tax returns under the estate's own TFN, and on the capital gains tax consequences of in specie transfers and post-death asset sales.

Where a person dies without a will, or where the named executor is unable or unwilling to act, an eligible person must apply for letters of administration. The order of entitlement under the Supreme Court rules broadly mirrors the intestacy hierarchy: surviving partner first, then children, grandchildren, parents, siblings and more remote relatives.

We prepare and lodge applications for letters of administration on intestacy, letters of administration with the will annexed (where there is a will but no available executor), and grants for partial intestacies. Where there are competing applicants of equal priority, or where the applicant's relationship to the deceased needs to be established by evidence (typically the case for surviving domestic partners), we manage the affidavit material and any disputed priority application.

We also act for beneficiaries who need clarity about their entitlement, who are concerned about the conduct of an executor, or who believe they have been left without adequate provision. Common beneficiary issues include unreasonable delay in administration, refusal to provide information, self-dealing by an executor who is also a beneficiary, undervalued asset sales, and suspected misuse of estate funds.

Beneficiary remedies range from requesting informal estate accounts and information, to formal applications for the executor to pass accounts under section 28 of the Administration and Probate Act 1958 (Vic), to applications for the removal of the executor and the appointment of an administrator de bonis non. Where the concern is the adequacy of provision rather than the executor's conduct, the path is a Part IV family provision claim within six months of the grant.

We regularly act in estates that include operating businesses, family trusts, self-managed superannuation funds, shareholdings in private companies, and assets held in other Australian jurisdictions or overseas. These estates require coordination with the deceased's accountant and financial adviser, careful attention to trust deeds and corporate constitutions, and (for overseas assets) resealing the Victorian grant or obtaining a parallel grant in the foreign jurisdiction. The combined commercial and estate capability of Armstrong Lawyers is well suited to estates of this kind.

Where an estate becomes contested — whether the dispute is about the validity of the will, the adequacy of provision, or the conduct of the executor — we act in the contested proceeding through to mediation or trial. Most contested estate matters in Victoria resolve at the Supreme Court's compulsory mediation. Detailed information about Part IV family provision claims is set out on our Contested Wills & TFM Claims page.

The cost of probate work is recoverable from the estate and is usually modest relative to the risks the executor carries personally. Distributing too early, paying creditors out of order, missing tax obligations, or failing to deal with capital gains tax on a transfer in specie can expose an executor personally for amounts far exceeding any saved legal fee. Beneficiaries with concerns face short, strict time limits. Early advice — in the first weeks rather than the second year — almost always produces a better outcome.