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What is Probate?

By 24 September 2015Recent Articles

When a person dies, leaving property, assets etc. in Victoria, it is usual for the executor of a person’s Will or the closest next of kin (where there is no Will) to finalise the deceased’s affairs.

This involves collecting the deceased’s assets, paying off any remaining debts, and then distributing the remaining assets according to the terms set out in the deceased’s Will. These steps can be done informally, without involving the Court. In some cases, it may be necessary to obtain a grant of probate or letters of administration (both are collectively referred to as grants of representation) before these steps can be completed.

The grant of representation is a legal document issued by the Court, enabling the executor or the administrator to handle the deceased’s assets. It allows the executor/administrator to gather the deceased’s assets, pay off any debt, and sell or transfer any property. The grant is proof that the person named in the grant is entitled to collect and distribute the estate of the deceased. There are three main types of grants:

  1. Probate: issued to the executor(s) named in the last valid Will by the deceased.
  2. Letter of administration with the Will annexed: issued where the deceased has created a valid Will but the executor cannot, or will not, apply for a grant. Usually, the grant is made towards the person s with the greatest interest under the Will.
  3. Letters of administration: issued when the deceased has not created a Will, or the Will that was made is not valid. In most cases, the grant is made in favour of the closest living next of kin of the deceased.

Probate Process

  1. The first step involves gathering information about the deceased’s property and assets as well as any liabilities. This generally involves looking into the property owned by the deceased, researching its’ value, requirements of banks etc.
  2. Once all the information is collected, an application for grant of probate should be made to the courts. This involves no appearance in court, the application is handled administratively. The length of time this takes will depend upon how busy the courts are.
  3. Lastly, once probate is granted, the executor deals with the administration of the deceased’s estate. Assets are used to pay debts and the rest is distributed to the beneficiaries. The length of time this takes will depend upon the number of assets and the complexity of the estate. Administration can take as little as a few weeks to more than a year – if the Will is challenged, the process can take a lot longer.

 

Author Estate Lawyers

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