The process of obtaining probate

Probate is a grant made by a Court that ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s. This is the official process that allows the executor to deal with the deceased’s estate.

As the legal personal representative of the estate, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the Will.

The executor is often guided by a lawyer who provides professional advice to ensure protection from liability and to deal with any complications or claims made on the estate.

If the deceased died without a valid Will, or if the Will appointed an executor who is unable to fulfil that position, an interested person (usually a spouse, partner or adult child) may apply for letters of administration.

This article explains the process of obtaining a grant of probate where there is a valid Will, and what is involved in administering the estate.

Is a grant of probate necessary?

In Victoria, there is a statutory requirement to obtain a grant of probate.  However, it is not always necessary to apply for a grant .  Whether a grant of probate is needed will depend on the value of the estate and the type of assets held by the deceased.

If the deceased owned property with another person as joint tenants, the property can be transferred to the name of the surviving owner by lodging the appropriate documents with the relevant authority.  In Victoria, the relevant authority is Land Use Victoria.

However, a grant of probate is always required to transfer property where the deceased was the sole proprietor, or where the property was owned with another person as tenants in common.

Banks, financial institutions and share registries will generally release modest amounts without probate on production of the death certificate and proof of those entitled to the funds, and an indemnity releasing them from future claims. However, each institution will have different requirements and relevant enquiries should be made with each entity.

Unless the estate is small, simple, and there is no risk of a claim being made against it, an executor will generally retain a lawyer and seek an application for a grant of probate.

Small Estates

Where the gross value of the estate does not exceed $111,540 (“a small estate”), a Small Estates Officer of the Supreme Court of Victoria may prepare the application for a grant of probate on behalf of the executor.

To be eligible, the application must not be difficult in nature and must involve a basic grant of representation.  In all applications, the executor will need to provide sufficient proof that establishes the identity and right or relationship of the executor to the deceased.

If you are an executor of a small estate and think you may be eligible, you should contact the Probate Office of the Supreme Court of Victoria.


In Victoria, there is a statutory requirement that an executor file an application for a grant of probate within six weeks of the date of death of the deceased.  However, obtaining a death certificate from Births, Deaths, and Marriages Victoria can sometimes take longer than six weeks, and the six-week requirement may not be met in some circumstances due to this.

A notice of intended application must be advertised online with the Supreme Court Registry at least fourteen days before the application is made. This advertisement is made publicly available for viewing by any interested parties (creditors, family provision claimants) in the estate, and provides an opportunity for a relevant claim or objection to be lodged.

In Victoria, applications for a grant of probate are filed online through the Supreme Court Registry. The documents required to be filed with the application vary and are dependent on the circumstances of the estate.  Despite this, the following documents are required to be filed with all applications:

  • Originating Motion for Probate;
  • The original Will, which needs to be mailed to the Court following the submission of the online application;
  • A copy of the death certificate;
  • A copy of the Supreme Court Registry advertisement; and
  • An Affidavit of the Executor.

The affidavit sets out the relationship between the deceased and the executor, identifies the Will and death certificate and provides the details of the two witnesses to the Will, The affidavit may also include information to explain irregularities, such as different spellings of names or the death of a beneficiary named in the Will. The estate assets and liabilities are disclosed by way of an inventory of assets which is annexed to the affidavit.

Sometimes additional documents will need to be prepared to explain unusual circumstances or irregularities, and an estate lawyer can advise in this respect. For example, in circumstances where there is no date recorded on the Will, an affidavit of due execution is required to be filed with the application.  This affidavit must be sworn by a witness to the Will and attest to the date of execution of the Will.

If assets are held outside of Victoria, the grant of probate will need to be ‘resealed’ in the relevant jurisdiction to deal with those assets. This is a procedural matter in which a copy of the original grant, a summons, and supporting documentation is filed with the relevant Court in the jurisdiction where those assets are held.

Protecting executors

Once a grant of probate is obtained, the executor may commence the administration of the estate.

However, executors may be liable for losses sustained by beneficiaries through negligence or delay in administering an estate, and must also ensure that all claims are considered before distributing estate assets. To protect an executor from liability against potential claims by creditors, a notice regarding the intended distribution of the estate may be published, and provide a specified timeframe for a party to notify the estate of any claim prior to its distribution.

The possibility that a family provision claim may be made on the estate must also be considered by the executor.  Any person seeking to make a family provision claim on the estate must do so within six months of the date of the grant of probate.  Any claim made after the six month period will require an explanation to the Supreme Court as to why a claim is being made out of time.  There is no guarantee that the court will accept an out of time claim

Although an executor may distribute the assets of the estate from the date of the grant of probate, it is recommended that they wait six months to avoid incurring liability.

An estate lawyer will explain the most appropriate means of protecting you as executor from liability.

Administering the estate

The Will should be examined to ensure the distribution is in accordance with its provisions. Understanding the correct interpretation of a Will’s terms can be confusing, and an estate lawyer can assist with explaining the proper interpretation of the terms of the Will.

The executor and beneficiaries should receive appropriate legal or financial advice when transferring / receiving assets to ensure that outstanding mortgages, stamp duty, capital gains, land tax and other taxes are considered.

Executors should also be mindful of their duty to protect and preserve estate assets, and that rules determine how the estate is distributed and dealt with.

Estates that include business interests will require additional attention – the business may need to be wound up, or the interests sold or transferred to a beneficiary.

Prior to distributing assets, the executor will need to be certain that:

  • the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts (including any outstanding funeral expenses if applicable);
  • funds are retained in the estate for contingent expenses such as taxes and other fees;
  • all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
  • the estate is not distributed until all creditors are identified and, if applicable, the requisite six month timeframe has expired for an eligible person to make a family provision claim; and
  • If required, a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries.


Applying for probate and administering an estate is an important process, and for many executors and beneficiaries it can seem tedious and daunting.

However, these processes are in place to ensure that executors and beneficiaries are protected, and that the testamentary wishes of a deceased person are properly carried out.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 03 8415 5600 or email

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