Probate
A grant of probate of a will is a legal document issued from the Supreme Court of Victoria issued to the executor of the will. The grant of probate recognises the validity of a deceased’s will and is proof that the executor (or legal personal representative of the estate) is entitled to collect and distribute the estate.
Before you apply for a grant of probate of a will, you should consider whether a grant of probate is practically necessary. Sometimes, small estates and joint bank accounts can be closed without the need for a grant of probate. Some superannuation funds will pay death benefits only to an estate, and it will become necessary to apply for a grant of probate. Each estate is different and our lawyers can advise you on whether or not a grant of probate is actually required.
Intestacy rules
When a person passes away without a will or their will is declared invalid the person has died "intestate". The law provides a default pathway for how their property and interests (estate) will be distributed. The ultimate beneficiary of such as estate will depend on the circumstances of the deceased. The intestate rules allow for the spouse or children of the deceased to distribute the estate by applying to the court for Letters of Administration. In making such an application, you should engage a lawyer to discuss your circumstances.It is important to note that the rules of intestacy do not have the flexibility represent your wishes or to suit each family. For example, where the deceased has no children and no spouse or partner, then the estate is distributed as follows:
  • The deceased’s parents receive the whole estate;
  • If the deceased’s parents are deceased, to the deceased’s siblings;
  • If the deceased has no siblings, to any surviving grandparents;
  • If there are no surviving grandparents, to aunts and uncles and then cousins;
  • If there are no surviving aunts, uncles, or cousins, then the estate passes on to the state government.
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FREQUENTLY ASKED QUESTIONS

The following are some of the most frequently asked questions our office receives about probate and letters of administration:

To obtain a grant of probate or letters of administration, you will need to make an application to the Supreme Court of Victoria. The Court requires that you lodge the following documents:


  • An originating motion for a grant of probate or letters of administration.
  • A copy of the advertisement for probate or letters of administration (done via the Probate Online Advertising System) which needs to be done 14 days before filing of the originating motion.
  • An executors or administrators affidavit which exhibits a certified copy of the death certificate of the deceased, the will (if any) and an inventory of assets and liabilities of the estate.


Sometimes, the Court will require further documentation to be filed. For example, if the will has been executed with different pens, the Court can request an affidavit of due execution to be filed. We can help you prepare these documents. Once the Court is satisfied with the application, it will issue the executor a formal grant of probate or letters of administration document.

The primary role of the executor is to fulfil the wishes of a will or follow the Victorian law that governs what happens to the estate of someone who has died “intestate” (without a valid will). This will involve:


  • Collecting/realising the assets of the estate
  • Paying any debts of the deceased (for example funeral expenses and creditor debts)
  • Distributing the assets


An executor can refuse their appointment if they do not believe they can fulfil this role. 

An executor or administrator an estate has fiduciary obligations towards the estate. This means that they are required look out for the beneficiaries' best interests and behave in their best interest at all times. Timely administration and distribution of the estate is the responsibility of the executor, who must factor in all relevant matters that may emerge. The executor should be careful to ensure that they have complied with their duties to the estate and obtained appropriate legal advice and taxation advice. If an executor breaches their duties, they could be personally liable for their actions to the estate. It is important for executors to act diligently and carefully in fulfilling their duties to avoid such consequences. Getting the right legal advice can be critical in protecting the executor and the estate.

The costs of legal fees are payable by the estate so the executor or administrator should not be out of pocket for these expenses. 

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