As mentioned earlier (see: "Wills", in Chapter 20*1 Wills), when a person dies leaving a will a grant of probate must be obtained. This is approval by the Registrar of Probates of the Supreme Court of Victoria that the deceased's will is in fact the last valid will in existence.

The majority of wills are proved in "common" form. This occurs where there is no dispute as to the validity of the will. Probate in these cases is granted when certain documents are filed in the office of the Registrar of Probates, without any court proceeding being necessary. The Registrar's office is located at:

If, however, there is any challenge or the possibility of a challenge to the validity of the will, it is necessary to prove the will in "solemn" form, which involves Supreme Court proceedings.

Where there is no will, or a will is executed but does not appoint an executor, letters of administration must be obtained before the estate of the deceased may be distributed. The procedure is similar to that required for obtaining a grant of probate and is described later in this chapter.

Probate and estate duties were completely abolished by 1984, and no formalities are now required at either state or federal level.

A grant of probate or letters of administration is required because the assets of the estate may not otherwise be collected for the benefit of the beneficiaries of the will. For example, the deceased may have had a bank account and banks will only allow executors to have access to a deceased's account if the executor concerned has received a grant of probate. Another practical result of receiving a grant of probate (or letters of administration) is the protection the grant gives to the beneficiaries or next of kin. Such people can assume that they are the only people who will receive the property of the deceased. If someone disputes this claim by, say, the production of another will, the only way these claimants can receive any of the estate is to apply to the Supreme Court to decide which will is the last valid will.

A grant of probate or letters of administration is essential to enable the personal representative to obtain the title to the deceased's property and then to collect, administer and protect it for the benefit of those interested in the estate. These may be creditors, beneficiaries or next of kin. The production of the probate is the only way the representative can prove title to the deceased's assets.

The responsibilities of a personal representative generally begin with arranging the funeral. Where there is no valid will, the responsibilities of the administrator depend entirely on obtaining the grant of letters of administration. Without that grant they have no standing at all and the estate vests in the State Trustees until letters of administration are granted (s.19 Administration and Probate Act 1958 (Vic) ("A&P Act")). Once letters of administration are granted, the administrator's duties are the same as those of an executor (s.27).

The major duties of the executor begin with the grant of probate, although as will be seen below they have certain powers before probate is obtained. The beneficiaries have no interest in the deceased property until the executor is in a position to distribute the estate; before this occurs all they have is a right to sue the executor if they fail to administer the estate diligently and correctly. A personal representative (executor or administrator) is not required to distribute the net assets of the estate immediately (s.49) but must make reasonable efforts in all the circumstances to wind up the estate promptly.

Delay may cause particular problems where the major or sole beneficiary is someone (particularly a spouse or domestic partner) with no source of income other than that deriving from the willmaker, or where there is intestacy. (For a definition of "domestic partner" see: "Disadvantages of intestacy", below.) Married couples may maintain a joint bank account which either party may sign. On the death of either of the account holders, the survivor automatically acquires the right to the entire account and will then have access to money until the estate is finalised.

A Victorian probate duty clearance (or Section 14 Certificate) is no longer required where the testator died before 1 January 1984, as that duty has been abolished.

A spouse or domestic partner of the deceased should, if left without income, apply for an appropriate social security payment (see: Chapter 7*1 Social Security Payments).

The major duty of a personal representative is to collect the assets of the deceased and distribute the proceeds of such collection according to the directions contained in the will or the statutory order on intestacy.

The debts of the deceased must also be ascertained and paid before any distribution is made; these will include debts owing in the form of income tax. Funeral and testamentary expenses must be paid in priority to all other debts of the deceased. An executor should generally advertise for claims against the estate to be made to them within two months of the advertisement (see: s.33 and Schedule 2 of the Trustee Act 1958 (Vic) ("Trustee Act"); and see: "Time for payment of debts", below). The representative is also required to keep detailed accounts and records of the administration of the estate. A beneficiary has the right to inspect and copy any documents or accounts relevant to that person's interest in the estate.

The executor has the choice of paying funeral expenses at an early date if funds permit. If possible, they can also make payments to creditors to avoid additional interest charges (e.g. payment of rates on a property) while awaiting the grant of probate. To protect the estate, before probate is obtained the executor is allowed to release and pay debts, receive money owing to the deceased, take possession of land (but not sell it) provided in all cases that they will eventually be able to satisfy the court of that power. The title is only made certain and final by the grant of probate.

There are several possible problems that may arise with the administration of an estate. Some of these are discussed below.

Normally a person is appointed as both executor and trustee. However, these are two different jobs. The executor's role comes to an end when he or she has realised the assets of the estate, paid any debts and is then ready to distribute the balance of the estate to the beneficiaries. Where the terms of the will create a continuing duty, such as the support and maintenance of young children, this role is performed as trustee.

A beneficiary who does not receive any capital, but whose share is restricted to the income only, is said to have an interest in a settled estate. For example, the willmaker may have left the income from the estate to a spouse for his or her life, and after the spouse's death the capital to their children. The obligations of the trustee then are to invest the capital fund, to preserve the value of the investment for the children, and to pay the income to the spouse during his or her lifetime.

The manner in which any such settled share is invested depends on the powers given by the deceased in the will. If these powers are not set out in the will they are restricted to the investment powers for trusts set out in the Trustee Act. See also: the Settled Land Act 1958 (Vic) and the Property Law Act 1958 (Vic) ("Property Law Act").

The law in this area is very complex and professional advice should be taken both before putting such provisions in a will or where such a provision appears in a will being proved.

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 made by posting the advertisement on the Supreme Court Probate Online Advertising System website https://online.justice.vic.gov.au.

There is a cost of $38.50 payable by credit card for each advertisement, but there is no fee to search the register of advertisements.

The following is an example of a common form of advertisement:

The documents listed below are then filed at the office of the Registrar of Probates (see: address details at "Probate", above).

All of 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 Registrar of Probates website at www.supremecourt.vic.gov.au, that sets out examples of these forms.

Total filing fees after 1 July 2010 will amount to about $275.00 (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:

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.

Legal actions by and against the deceased (with some exceptions such as for payments of maintenance to ex-wife and children, and obligations which can only be carried out personally by the deceased) continue after the death of the deceased (s.29 A&P Act).

If the deceased had more debts than assets it is necessary to deal with the estate in a different way from that which operates where the deceased died financially solvent. The second Schedule to the A&P Act sets out which assets of an estate must be used first in payment of estate debts.

This is particularly so when the deceased has considerable debts but also has property out of which those debts could be paid. In these circumstances the estate is made insolvent. If the estate is administered by a trustee in bankruptcy the executor or person granted letters of administration does not take part in the administration of the estate. However, life policies of the deceased are exempted from the bankruptcy (ss.204 & 205 Life Insurance Act 1995 (Cth)) as are superannuation benefits (s.249 Bankruptcy Act 1966 (Cth)).

There are several ways in which a person may contest a will, although they are all limited in their application. A challenge may be made where:

Before any challenge to a will is contemplated legal advice should be obtained as the procedures are complicated, expensive and time consuming.