What is probate?
A Grant of Probate is verification from the Court that the last will of a deceased person is valid, and identifies who of the executors appointed by the will are. The Grant provides authority to the executor to deal with particular agencies and asset holders such as banks, share registries, the land titles office and the Australian Taxation Office to deal with estate assets.
What is ‘parchment paper’ and why do I need it for probate?
Traditionally the Supreme Court of Victoria issued hard copy grants, which were stapled to thick cardboard called ‘parchment’. You needed to provide your own parchment in order to obtain the grant.
In 2020 the Supreme Court of Victoria moved to issuing online grants only through RedCrest. Your solicitor is still able to provide you a certified copy of the grant after inspecting the “original” held in RedCrest.
Digital grants, and copies of them, can be distinguished from copies of hardcopy grants, because the digital grants now include a unique identifier in the bottom right-hand corner.
When is Probate required in Victoria?
Probate is required any time an asset holder or agency requires it in order to recognise the executors or deal with the assets. Usually such agencies would include a bank, if the deceased person held an account there over a certain value (usually about $50,000 and sometimes less), share registries if there was a large portfolio of shares, and the land titles office any time a deceased person owns real estate.
Executors may also wish to obtain a grant if they believe it is likely a creditor or other person, such as a family member, might make a claim on the estate. This is because a grant provides some level of legal protection to executors who act in good faith where there is later a successful claim against an estate.
When is probate not required in Victoria?
Probate is not required in instances where an estate is small, there is not expected to be any trouble from creditors or other people, or where the agencies are all happy to release assets to the executors without a grant.
Do I need to obtain probate?
Perhaps. We recommend executors obtain a grant of probate any time they are concerned about a creditor or other person making a claim on the estate, if they are concerned that the will might not be valid, or if they are aware asset holders will require a grant to release those assets.
An executor may apply for a grant of probate without a lawyer. However, executors normally seek the assistance from a lawyer given the formalities involved. Any costs incurred as part of this are costs of the estate.
Who is entitled to apply for a grant of probate in Victoria?
The executor named in the will is entitled to apply for a grant of probate. If there is no will, or an issue with the will, then you may not be able to get a grant of probate. We can help you with unusual or more complex grants.
How long does probate take in Victoria?
Once the documents are lodged with the Supreme Court, the application usually takes 2-4 weeks to progress. This can be slightly longer during Christmas or Easter, although the Court usually remains open at those times. Note that the longest part of the application process is usually waiting for the death certificate from births, deaths and marriages. This can take 6-8 weeks after date of death to arrive, and is required before the application for probate can be made.
Can you get a reseal of probate in Victoria?
Yes. It is possible to apply for a reseal of probate from any Australian or Commonwealth jurisdiction in Victoria. A reseal is confirmation that a grant of probate made in another jurisdiction is recognised in Victoria.
When do I need to get a reseal of probate in Victoria?
Typically an executor will only require a reseal if the deceased person held real property (eg. a house) in Victoria, and the executor has also had to apply for a grant in another state or territory. Most banks and share registries are able to recognise grants from other jurisdictions without requiring a reseal.
Probate Lawyers Melbourne
Timothy Morton
Director – Wills & Probate Lawyer
Tim has acted in a number of complex probate litigation cases where the capacity and knowledge and approval of the willmaker was in doubt or where there have been concerns about whether the willmaker was unduly influenced by another person. Tim also regularly appears in the Guardianship Tribunal of the ACT Civil and Administrative Tribunal.
Tim holds a Master of Laws (Applied Law) majoring in Wills & Estates, he teaches and tutors Wills & Estates at the Australian National University, and he is a member of the ACT Law Society’s Elder Law & Succession Committee.