What is Probate, and when does it apply?

Managing Principal
Wills & Estate Planning
31 May 2023

When a family member or loved one passes away in Victoria, it is often necessary to apply for a grant of probate in order to legally distribute their estate. Whether or not a grant of probate is required will depend on nature and type of assets owned by the deceased.

Distributing the estate

There are strict legal requirements that must be met before an estate can be administered – regardless of whether or not there is a Will. Following a successful probate application, the Court will issue a grant detailing the assets and liabilities of the deceased. The grant gives a nominated executor or personal representative the power to then manage the estate – including valuing any assets, distributing them to appropriate beneficiaries, and paying off any debts or taxes owed. 

Probate can be a complex process. It can take several months or even years to complete, depending on the size and complexity of the assets in question. It can also be costly, as the legal fees and court costs incurred in the process may also need to be paid out from the estate.

Maintenance orders

In situations where a Will exists, but makes insufficient provision for someone that the deceased had an obligation to provide for, the Court has the power to make a maintenance order to cover that person’s basic support needs out of the estate.

A person can apply for a share (or an increased share) in an estate if they can show that the deceased had a responsibility to make adequate provision for them in the Will and did not do so. This person does not need to be related to the deceased – potential applicants can include domestic partners, stepchildren and people who cared for the deceased.

Time limits

Once probate has been granted, the estate should usually be distributed within 12 months from the date of death.

When to seek advice

At Madison Branson, our specialist Wills & Estate Planning team can undertake the probate application process on your behalf, where necessary liaising with accountants, banking institutions, stockbrokers, insurers and other professionals. Upon the grant of Probate, we can also assist with the administration of the estate, deal with beneficiary entitlements and help establish ongoing Trusts.

For a confidential discussion, contact the Madison Branson Wills & Estate Planning team today.

The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

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