What is probate?
If you're involved in administering a deceased estate, one word you're likely to hear thrown around quite a bit is "probate". So what is it?
Probate and Letters of Administration are two different types of grants of representation. They are basically court orders from the Supreme Court of Victoria. The image on the left is the back cover of a grant of representation, and inside the cover will be a copy of the will (if there is one) and an order made by the Supreme Court. The order states that the willmaker has died and the executor has the right to administer the estate.
Probate is granted when there is a valid will, and Letters of Administration are granted when there is no will, or the will is invalid or partially invalid for some reason, for example if the executor has died.
If you are the executor of a will, or administrator of an estate (if there is no will), you may be required to obtain a grant of representation to sell or collect the deceased's assets. However, a grant is not always required.
Circumstances in which you might need a grant of representation include:
The deceased had more than $10,000 held by an aged care facility, for example if they paid a bond to enter into a nursing home.
The deceased had accounts with a bank totalling more than $50,000.
The deceased owned real estate in their sole name.
The deceased owned shares worth more than $25,000.
This is not a definitive list as occasionally organisations set their own requirements beyond those listed above. Sometimes, if a grant of representation is only needed for one asset and the asset value is close to the threshold, the requirement to obtain a grant will be waived. Obtaining a grant is more costly and time consuming than not obtaining a grant, so it is worthwhile discussing the need to obtain a grant with your lawyer before proceeding with the application.
If you are required to obtain a grant of representation to administer the estate, you can expect the following:
Initially, I will collect all of the information required to complete the application. This includes details of the deceased and the executor(s), type and value of assets and liabilities, and the original will and death certificate.
I lodge an advertisement on the Supreme Court of Victoria website. The advertisement is required to be lodged at least 14 days before the application for a grant of representation, and it advertises to the world that the executor has what they believe is the deceased's last will and that they intend to apply for a grant of representation with that will. Anyone who believes they have a later will has those 14 days to come forward, before the executor can make the application.
Once the application documents are drafted, the executor needs to sign them. The documents need to be signed in the presence of someone who can witness affidavits, either myself or another authorised witness.
The signed documents are lodged with the Supreme Court. As long as everything is in order, the documents are complete and there is nothing wrong with the will, a grant of representation is usually issued within two weeks.
The grant can then be provided to banks, the titles office, share registries, etc. to enable them to release assets held on behalf of the estate.
The fees for obtaining a grant of representation are (in 2021-22):
Advertisement fee $24.00
Supreme Court application fee ranges from $63.10 (for estates valued at less than $500,000) up to $2,134.30 (for estates valued at over $3,000,000)
Lawyer's costs - variable, depending on the amount of work involved, but usually somewhere between $500 and $1,000 (this is the fee for obtaining the grant of representation only and does not include administration of the estate). All quotes are fixed and provided in writing so you can be assured of your expenses prior to proceeding with the application.
If you have been appointed executor of a deceased estate or you believe you may be the person entitled to act as administrator, please contact me on 0422 699 504 for a free initial phone consultation.