The process of applying for a grant of probate is relatively straightforward, however, the steps required must be undertaken In a specific manner and a specific order, also within a specific timeframe.
The procedure for obtaining a grant of probate of a deceased’s will starts with an advertisement of the intention of the executor to apply for probate after the expiration of 14 days. This time factor is allowed to permit anyone to contest the application because of the existence of a later will.
From 2 September 2009 all probate and administration advertisements must be posted on the Supreme Court Probate Online Advertising System website (at http://www.supremecourt.vic.gov.au).
Each advertisement costs $43.50, but there is no fee to search the register for advertisements.
The following is an example of a common form of advertisement.
Re [EF] deceased
Take notice that [AB] [and CD] the executor[s] named in the will dated [insert date of will] of [EF] deceased, late of [insert address] will 14 days after the date of publication of this advertisement apply to the Supreme Court of Victoria for a grant of probate of that will.
[Name of applicant or solicitor]
The five documents listed below are then filed at the Probate Office (see address details under “Probate”):
1 Affidavit in support of the application sworn by the executors: a full death certificate, the original will and an inventory (which is a list of the deceased’s assets and liabilities held in Victoria and elsewhere in the deceased’s name only) are exhibits to this affidavit.
2 Affidavit of publication and searches: this is usually sworn by the applicant or solicitor’s clerk who searches at the Probate Office and Registrar-General’s Office for competing applications. A copy of the advertisement previously referred to is exhibited to the affidavit.
3 Notice of motion: this summarises the particulars of the application.
4 Order for probate.
5 Probate parchment.
All these documents must be in the form set out in the Supreme Court (Administration and Probate) Rules 2004 (Vic) (“A&P Rules”). See also the Probate Office’s website at www.supremecourt.vic.gov.au, which sets out examples of these forms.
Total filing fees will amount to about $310 (where the gross value of the estate is $1,000 or more), depending on the size of the estate and the number of pages in the will. The Registrar has the discretion to waive fees in cases of hardship (s 129(3) Supreme Court Act 1986 (Vic)).
The affidavits are usually sworn before a commissioner of the Supreme Court for taking oaths. The office of the Registrar of Probates will supply the names of persons able to witness affidavits, if required.
When the Registrar grants probate, it operates from the date of the grant of probate written on the document.
However, an executor’s authority runs from the date of death, unlike an intestacy, where until a grant is obtained, the authority dates from the date of the grant of administration.
Creditors to the estate may have to wait until after the statutory notice to claimants has expired before they may receive payment. The purpose of this notice is to avoid any late claims being made against the estate, and it should be placed in the legal notices advertisement pages of a daily newspaper. Where the assets of the estate are more than $2,000 the advertisement should also appear in the Government Gazette (s 33 Trustee Act).
The following is the form of the notice:
[Insert name, address and occupation of deceased]
Creditors next of kin and all others having claims in respect of the deceased who died on the [date of death] are required by the executors [names and addresses] to send particulars of such claims to the said executors by the [date] after which date the executors will distribute the assets having regard only to the claims of which they have notice.
This notice cannot operate to exclude any legitimate claim by a creditor but protects the executor distributing the estate in good faith and any genuine purchaser from the estate.
If claimants come forward as a result of the advertisement, the executor must either pay the debt if it is payable or, if disputed, the creditor must be notified to take proceedings to claim the debt from the estate within three months (s 30 A&P Act).
It now remains for the executor to carry out the terms of the will and distribute the estate to the beneficiaries. Specific bequests, such as furniture, jewellery and pictures, are to be handed to the legatees and cash distribution arranged from the sale of assets. Unless the will contains a specific power to do so, the willmaker’s estate cannot be sold by the trustees but must be transferred to the beneficiary entitled to the real estate, unless they authorise the trustee to sell.
Where a beneficiary is a minor (under 18) the bequest must be held until the beneficiary reaches 18. There are, however, certain circumstances when amounts may properly be paid to the parents or guardians of a minor for that person’s maintenance and general benefit. This depends on the wording of the will. Also, section 38 of the Trustee Act allows the advancement of up to half the capital of an infants share.
The executor should consider the likelihood of any person making application for provision out of the estate under part IV of the A&P Act. These claims must be brought within six months of the grant of probate, or administration. If there is any prospect of a claim being made, the estate should not be distributed until after the six-month limitation period has expired, as the executor will be personally liable to a successful claimant if the estate is distributed before the limitation period has expired.