A Guide to Probate and When You Need to Apply

Rose Lawyers on 4 December 2014

So, what is a probate? We'll begin with a definition. Probate is the Order made by a Court (in Victoria, this is the Supreme Court of Victoria) that allows Executors to act in accordance with a Will. It confirms the authority of the nominated Executor (the person who has been appointed within a Will to manage to will maker’s estate) to look after the estate of the deceased will maker (called the Testator) and to distribute the assets to the people entitled to them under the terms of the Will (called the beneficiaries).

Despite its importance, many people fail to recognise the necessity of Probate. It is commonly assumed that a legal Will is able to be affected immediately after the Testator is deceased. However, in reality the Will is unable to be affected until probate has been granted by the relevant Court. Before a Will can be acted upon, the Testator's death must first be proven to a Court and the Will must be established as legally valid.

When is Probate Necessary?

You’d think that the ability to give beneficiaries their entitlements would be automatically allowed when the wishes of the Testator have been written in a Will that has been prepared and signed in accordance with the Wills Act. But in actuality, there is still a legal process to undergo before the entitlements can be distributed. This process is called Probate.

When a deceased person leaves behind a Will, Probate is required in order to give the Executor the right to deal with assets, such as real estate and money being held in bank accounts. Real estate cannot be divided and transferred to the Will’s beneficiaries unless probate has been first been obtained. This is with the exception of surviving joint proprietors, who continue to hold legal right over the business, property or assets they had jointly held in the past.

Additionally, banks won’t allow the Testator’s nominated Executor to deal with accounts which have a balance over a certain amount unless probate has been granted. Banks will, however, usually pay an Invoice for a funeral provided that the account holds adequate funds.

When is Probate Not Necessary?

The only instance that Probate may not be necessary in Victoria is if the deceased person’s estate is small, and does not contain real estate. It would also not be necessary if all assets had been held jointly.

If a person dies without a Will, then Probate is not applied for. There is a different process used in this scenario, called Letters of Administration.

Who Can Apply for Probate?

In general, it is the Executor of the Will that applies to the Probate Officer for Probate. If there is more than one Executor of the Will, more than one can apply. A lawyer appointed by the Executor is also able to apply on their behalf.

It is the Executor that ‘stands in the shoes’ of the deceased; who is authorised to divide and manage the left-behind estate according to the Testator’s wishes. Part of the Executor’s role is to apply for Probate (or to arrange for a lawyer to do so on their behalf) so that the Will may be established as valid by the Court, and that they may begin to distribute the relevant assets to the Will's beneficiaries as quickly as possible.

What Do I Need to Apply for Probate?

probate registry supreme courtTo apply for Probate, an application must be made to the Prothonotary's Office of the Supreme Court and the relevant application fee must be paid. In order for the Court to make the Order for Probate, it must be satisfied that the Testator has actually died, and that the Will that is being presented is the final version of the Will made by the deceased and that it has been prepared and signed in accordance with the Law.

Summary

Probate is the legal process that gives the Executor the authority to act in accordance with the Will. In most cases, it is a crucial first step to the administration of the Testator’s wishes. Probate allows the Will to be affected, and grants the Executor the right to distribute property amongst the Will’s beneficiaries. In the majority of cases, Probate is necessary. There are, however, some exceptions to this rule.

Failure to attain Probate effectively means that the Executor cannot do what the Will says. Probate allows the Will to be administered as the Testator had intended, and gives authority to the person who has been entrusted with administering it.

In essence, Probate lets the world know that the Executor now has the authority to handle the assets of the deceased Testator.

For more information on Probate click here.

Or call Rose Lawyers 03 9878 5222 for a free consultation.