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What do I need to know about probate?

If you are the Executor of a Will or the next of kin of someone recently passed, we can guide you through the process of applying for Probate or Letters of Administration. The process of obtaining a Grant of Probate of Letters of Administration can be a complex and time-consuming process – an added stress in what is already a very difficult time for you and your loved ones. That is why our goal is to make it easy.

What is Probate?

When a person dies with property or other assets in Victoria, the executor of a person's will needs to finalise the deceased's affairs and transfer that property or assets to whomever is named in the will (the beneficiaries). Probate is the process of having the Supreme Court certify the will and confirm theexecutor. To do this, the Court requires you to give an oath or swear that the will upon which the executor will rely is the final will of the deceased person. This is done through an affidavit. In the affidavit you will also be asked to verify the value of the estate. This makes the will official and the Court thenformally appoints executor.

The Grant of Probate then allows the executor to finalise the deceased’s affairsand transfer the property or assets to whomever is named in the will (thebeneficiaries).

This will usually include doing things like:

  • collecting or gathering all of the deceased’s assets (understanding what was actually owned by the deceased and prepare it for payment or distribution)
  • paying any debts
  • giving gifts, property, cash or other assets to those named in the will

Sometimes, when there is not a lot money or the estate is not large (usually under $50,000 and no real estate), a Grant of Probate is not required.

However, almost always when there is real estate or other assets or cash in the bank over the value of $50,000.00, it is likely that a Grant of Probate will be necessary before these duties can be completed.

A Grant of Probate allows the executor to collect money held by the deceased in banks, managed funds and so forth, to their debts to be paid (if any), and for their property to be sold or transferred. The Grant of Probate is proof that the person named in the Grant (called a ‘legal personal representative’) is the person who has the right to perform these tasks.

What are Letters of Administration?

In some cases, a Grant of Probate will not be possible. The most common reason for this is when the deceased did not leave a will (also known as intestacy, with the person who died without a will being known as the ‘intestate’). However, other situations may arise which also make obtaining a Grant of Probate impossible, for example:

  • Where a valid Will exists but does not appoint an executor, or the appointed executor or executors are unwilling or incapable of acting (or has also passed away)
  • Where the Will appoints an executor but he or she is out of the jurisdiction and appoints an attorney to obtain a Grant on their behalf
  • Where the executor named in the will is not 18 when the deceased passes away.

Where there is no will, the law sets out who will be entitled to the estate of the deceased. Broadly speaking the closest next of kin of the deceased will inherit the estate of the deceased. If there is a spouse and children, for example, there are specific rules which determine how an estate is to be divided.

The next-of-kin hierarchy is as follows

  • Spouse/domestic partner
  • Children (excluding step-children)
  • Grandchildren
  • Parents
  • Siblings or children of deceased siblings
  • Grandparents
  • Nieces and nephews, aunts and uncles, great-grandparents

In these cases (and limited others), when a person dies with property or other assets in Victoria, a person needs to step forward to finalise the deceased’s affairs and transfer that property those entitled to it.

This will usually include doing things like

  • collecting or gathering all of the deceased's assets (understanding what was actually owned by the deceased and prepare it for payment or distribution)
  • paying any debts
  • giving gifts, property, cash or other assets to those named in the will or as set out by law

The person who obtains a grant of Letters of Administration is known as the Administrator.

A grant of Letters of Administration allows the Administrator to collect money held by the deceased in banks, managed funds and so forth, pay any debts (if any), and for their property to be sold or transferred to the appropriate people.

SGM Legal can provide you clear and concise advice when it comes to matters of Probate and Letters of Administration. We have dedicated lawyers who can assist you with any aspect of the process including:

- Obtaining the Death Certificate

- Locating the original will (which you will need for Probate)

- Applying for Probate or Letters of Administration

- Transferring assets, including land, into and out of the Estate

- Corresponding with the beneficiaries of the Estate

- Paying for necessary expenses from the Estate, such as the funeral

- Complying with any special instructions given by the deceased

- Estate Administration generally

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