This factsheet is for those who want to learn more about Wills and probate.
Grants of representation
What is a grant of representation?
A grant of representation (“grant”) is a document issued by the Supreme Court that enables the executor or administrator to deal with the deceased person’s estate. Under Victorian law there are three main types of grant:
probate – A grant of probate is issued to the executor(s) nominated in the most recent valid will left by the deceased person. This court recognition is evidenced by the Registrar of Probates placing the seal of the Supreme Court to a court order, known as the probate parchment.
letters of administration with the will annexed – This form of grant is issued where the deceased has left a valid will but the executor is unable to, or will not apply for a grant (for example, no executor was appointed or the named executor has died). Generally, the administrator must be the main beneficiary under the will.
letters of administration – This form of grant is issued where the deceased has died without a will or the will they have made is not valid. It is generally issued to the person entitled to the greatest share of the estate under the rules of intestacy.
The executor or administrator must place a notice on the Supreme Court of Victoria’s “Probate Online Advertising System” advertising their intention to apply for a grant of probate or letters of administration of the will, after a period of 14 days from the date of the notice. Applications must then be filed with the Probate Office.
In some cases, where the assets of the estate are small or jointly held, these assets may be dealt with without obtaining a grant. From 1 July 2015, a new definition of the maximum monetary threshold of “small estates” was introduced to section 71 of the Administration and Probate Act 1958 (“the Probate Act”). Section 71 defines a ‘small estate’ as an estate where the gross value of solely owned assets does not exceed $107,160.00 Small estates that fall within this definition can seek the aid of the Registrar or another officer in the Probate Office in procuring a grant of probate. Assistance can also be sought from local Magistrates’ Courts should applicants live more than 32 kilometres from Melbourne.
When is a grant required?
A grant is always required where a deceased person owned an interest in land in Victoria in their own name. The Land Titles Office will not allow land to be transferred or otherwise dealt with until it has evidence that a grant has been obtained. A grant is not required to deal with property that was held jointly (as joint tenants), as that property will pass to the survivor through the “right of survivorship”.
Where the deceased held other assets of value (such as money in bank accounts, shares or other investments), the banks, share registries and any other organisations are likely to require production of a grant before they permit the transfer of those assets. Each organisation has its own policy as to whether it requires a grant. For example, some banks require the production of a grant where they hold $15,000 or more. For other banks, the threshold is greater, such as $30,000 or $50,000.
In situations where a grant is not required, the relevant organisation will release funds to an executor or beneficiary once its requirements have been met. Those requirements are usually proof of death, proof of the existence of the will (if there is one) and an indemnity from the claimant.
The indemnity is required so the organisation can recover from the claimant any loss it suffers if it is later discovered that the asset was released to the wrong person. An indemnity is not required when a grant is produced.
What if funds are needed urgently?
Banks and other organisations generally release enough funds from a deceased's estate to pay funeral costs prior to the granting of probate. A bank, for instance, will generally either pay the funeral home directly once it receives the original invoice or will reimburse the person who paid the funeral invoice from the deceased's funds. Banks and other organisations may release part or all of the funds they hold immediately if they are satisfied that a beneficiary of the estate, such as a domestic partner or child, would otherwise suffer significant hardship.
An urgent release of funds to a beneficiary is not an automatic right. It is at the discretion of the bank or organisation that holds the asset for the deceased.
Is proof of death required to obtain a grant?
Generally proof of death is required to obtain a grant. The proof required is a death certificate from the Registry of Births, Deaths and Marriages or an equivalent register.
In ordinary cases, a death certificate takes about four weeks to be issued. However, where a Coroner's inquiry is taking place, a death certificate may not be issued for many months. During an emergency or a disaster where there are a large number of deaths, the process may take longer.
To avoid significant delays in obtaining a grant, as an interim measure the Registrar of Probates will usually accept an interim death certificate from the Coroner's Court or from the Registry of Births, Deaths and Marriages as proof of death. However, the interim death certificate may not be accepted by banks and other organisations. The Registry will require evidence of the full death certificate when it is eventually issued. The Registry will require further information if there are any differences between the Coroner's certificate and the death certificate.
Where there are difficulties with identification of a deceased person, it is unlikely that the Coroner will provide a certificate until the person’s identity has been established. This will cause delays in administering a deceased estate.
What if death cannot be proved?
In some instances, a person's death will not be able to be proved, in which case a person may be considered as missing, although they are presumed dead.
A grant can be issued without actual death being established, and can be made on the presumption of death. The person who is claiming that someone has died must establish to the Court's satisfaction that this person is likely to be dead.
Before the Court will declare a person to be presumed dead, the law generally requires a person to be missing for seven years without being heard of, and that there are people who would normally have heard from the person in that time but have not. Where the circumstances show that in all probability death has occurred, the Court is able to infer death without waiting for the seven-year period.
Where a grant is issued on the presumption of death, the estate assets cannot be distributed without the leave of the Court.
What happens when it cannot be proved who died first?
There may be some instances where it needs to be established who died first, for example to determine the order of wills or ownership of assets. Where it cannot be established who died first, there is a presumption that the oldest person died first.
Must a beneficiary survive the deceased by 30 days?
The Wills Act 1997 (Vic) provides that beneficiaries must survive the deceased by 30 days before they become entitled to a gift under the will. If beneficiaries die within that 30-day period, they are treated as if they had died before the deceased. This does not apply if the will shows a different intention.
Despite the rule regarding the 30 days, an executor can make a distribution of assets, such as money, to the spouse, partner or child of a deceased within this 30-day period. The distribution needs to be made by the executor in good faith, and must be for the purpose of providing maintenance, support or education to the beneficiary. The amount distributed will also be deducted from the relevant person’s entitlement under the will. If the beneficiary dies within the 30-day period, the distribution is treated as an expense of the estate.
What happens if the original of the will is missing?
If there is a copy of the will available, a grant can be obtained. The executor's affidavit accompanying the application for the grant must address:
the circumstances under which the will was lost;
the efforts made to find the will, such as enquiries of banks and solicitors and the publishing of advertisements; and
evidence that the will maker did not revoke the will.
Affidavits are also usually required of witnesses to the will. Where the witnesses cannot be located, other evidence will be needed to corroborate the valid signing of the will or to establish that the document is an informal will.
Where no copy of the will is available, it is possible to obtain a grant on a “reconstructed” missing will. In addition to the evidence listed above for a copy will, evidence of the content of the original will is needed. This evidence would need to be independently corroborated.
What happens if there is no will?
A common perception in the community is that where there is no will the assets of the deceased go to the government. This is not always the case.
A set of rules known as the law of intestacy provides a formula for the division of assets between relatives, such as spouse/partner and children, where there is no will.
It is only if there are no relatives within the specified categories that the assets of the estate go to the government.
The person entitled to apply for a grant of letters of administration in relation to an intestate estate is the person with the greatest entitlement to the deceased's assets, such as the deceased’s next of kin.
If a deceased intestate leaves a partner and children of that partner, the partner is entitled to the whole of the estate. This is because the law assumes that the surviving partner will provide for their children later upon their death.
If an intestate leaves a partner and children from a different partner, the partner is generally entitled to the first $451,909.00 of the estate plus interest, all of the deceased’s personal chattels, and then one half of the remainder of the estate. The remaining one half of the residuary estate is shared between the children who are not of that partner.
These provisions change if the deceased has more than one partner at the time of their death.
What about superannuation?
The superannuation entitlements of a deceased person (known as “death benefits”) do not always form part of the deceased's estate and so can often be distributed without the need for a grant. These entitlements may include the deceased’s accumulated member’s balance as well as insurance proceeds.The deceased may have executed a “binding death benefit nomination” form, which designates to where the deceased person wanted their balance go. This may be directly to a partner or children, or into their estate.
Superannuation funds have differing rules regarding the payment of entitlements, so the best step to take is to write to the fund who will provide claim forms, advise who could potentially make a claim (such as spouse/partner, children, financial dependents) and advise of their requirements for distribution of death benefits.
Can a power of attorney still be used?
No, Enduring Powers of Attorney, and all other powers of attorney, cease to operate when the person who gave the power dies.
Any person who was appointed under a power of attorney cannot use that power to access the deceased's assets. Only the executor of the will, or the person or people appointed under letters of administration, will be entitled to access a deceased person's assets.
Do I need legal advice?
While there are do-it-yourself probate kits, it is highly recommended that you seek legal advice and assistance in the administration of a deceased estate.
If an application for a grant is not initiated correctly, added complications, delays and expense are likely to result, which in turn may cause distress and anxiety to all involved. There can also be additional expenses where an application is rejected for errors and has to be re-made.