How to Apply for Probate in Victoria
When a person dies leaving a Will, the executor named in the Will may need to apply to the Supreme Court of Victoria for a Grant of Probate. Probate is the process by which the court confirms the validity of the Will and the authority of the executor to administer the estate. Understanding when probate is required, and how to obtain it, is an important part of the estate administration process. This article is general information only.
When is probate required?
Not every estate requires a Grant of Probate. Whether probate is needed depends on what assets the deceased held and in what form. Probate is generally required where the deceased held real property (land or buildings) registered in their name alone or as a tenant in common; or held significant financial assets (bank accounts, share portfolios, superannuation in the accumulation phase) in their sole name above the financial institution's threshold.
Assets held as joint tenants automatically pass to the surviving joint tenant outside the estate (by right of survivorship) and do not require probate. Similarly, superannuation death benefits are generally paid directly to dependants or the estate based on a binding death nomination and do not pass through the Will.
The Supreme Court of Victoria probate process
Applications for probate in Victoria are made to the Probate Office of the Supreme Court of Victoria. The process is largely administrative — the court does not conduct a hearing in a straightforward probate application. Instead, the executor (through their lawyer) files the required documents, including the original Will, a certified copy of the death certificate, an inventory of assets and liabilities, and the probate application.
The Probate Office reviews the documents and, if satisfied, issues the Grant of Probate. The Grant is a formal court document that financial institutions, share registries, land registries and other asset holders require before they will transfer assets to the executor.
Advertising the intention to apply
Before lodging a probate application, the executor is required to give public notice of the intention to apply for probate. This is done by placing a notice on the Supreme Court of Victoria's probate advertising website (Redbook). The notice must be published at least 14 days before the application is filed.
The advertising requirement allows creditors of the estate and any person who wishes to challenge the application (for example, on the grounds that the Will is invalid) to come forward before the Grant is made. This is not optional — it is a mandatory step in the process.
Executor duties
The executor named in a Will has significant legal duties. These include: obtaining the Grant of Probate; identifying, protecting and valuing all estate assets; paying all debts, liabilities and taxes of the estate; and distributing the remaining estate to the beneficiaries in accordance with the Will.
Executors also have a duty to keep proper records of all transactions, to act in the best interests of the beneficiaries (not their own interests), and to distribute the estate within a reasonable time (often referred to as the 'executor's year' as a general guide). Failing to carry out these duties properly can make an executor personally liable.
Timeframes
The time to obtain a Grant of Probate in Victoria varies depending on the complexity of the estate and the current workload of the Probate Office. A straightforward application with all documents in order can be processed in approximately 4 to 8 weeks from filing (after the 14-day advertising period has expired). More complex applications, or those where a caveat has been filed, will take longer.
Once the Grant is obtained, the administration of the estate can begin — notifying asset holders, collecting assets, paying debts, and ultimately distributing to beneficiaries. The total time to fully administer an estate can range from a few months to over a year depending on the complexity.
General information only. This article provides general information about the law in Victoria and does not constitute legal advice. Every situation is different — you should seek advice from a qualified Australian lawyer before making any decision based on this information. Liability limited by a scheme approved under Professional Standards Legislation.
Key takeaways
- Probate is required when the deceased held real property or significant financial assets in their sole name.
- Applications are made to the Probate Office of the Supreme Court of Victoria — no hearing for straightforward applications.
- You must advertise the intention to apply on Redbook at least 14 days before filing.
- Executors have significant legal duties and can be personally liable if they fail to perform them.
- A straightforward probate application typically takes 4–8 weeks from filing.
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