Deceased estates

Types of Grant of Representation

A Grant of representation (a Grant) is a document issued by the Supreme Court of Victoria that enables a person or people (known as the executors or administrators) to deal with the property and belongings (the estate) of a deceased person.

Under Victorian law there are three main types of Grant:

• Grant of Probate: this form of Grant is issued to the executor(s) nominated in the most recent valid Will left by the deceased person.
• 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 or unwilling to 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 no Will or the Will they have made is not valid. It is generally issued to the deceased person’s closest surviving next of kin upon application (for example, a spouse or child of the deceased).

Although less common, there is also:

• Limited Grant of Probate or Administration: this form of Grant is sometimes issued by the Supreme Court of Victoria when there is an urgent need to immediately deal with a particular aspect of the deceased person’s estate and where failing to do so would cause significant loss to the estate. The limited Grant only applies in relation to a particular aspect of the estate, and a full Grant is still required to deal with the balance of the estate which is not subject to urgency. Examples of where this Grant could be used include the deceased person entering into a contract of sale during their lifetime with a settlement date occurring before a full Grant could be reasonably obtained, where there is a significant mortgage that needs to be dealt with to avoid default or a bank selling the property, or where there is a business that needs to continue to operate after the deceased person’s death, to avoid loss of good will or its value deteriorating as a result of being unable to operate the business. A limited Grant will not be issued if a full Grant can be obtained in the first instance.

Using a Grant of Representation

While there are do-it-yourself probate kits available, it is highly recommended that you seek legal advice and assistance when preparing an application for a Grant and in respect of the administration of a deceased estate. If an application for a Grant is not prepared correctly, added complications, delays and expenses are likely to result.

A Grant is always required when a deceased person owned an interest in land in Victoria, either solely in their own name or as a tenant in common. Land Use Victoria (formerly 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 surviving owner by way of survivorship. The surviving owner will still need to submit documentation to Land Use Victoria or electronically through PEXA in order to transfer the property into their sole name by way of survivorship, but will not require a Grant as part of the documentation required.

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, but this will depend on the value of the asset and any internal policies that the relevant institution may have. In Victoria, holdings valued at less than $25,000 can sometimes be transferred without a Grant, but each asset holder may have different internal policies.

In situations where a Grant is not required, the relevant organisation may 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. This is often the case with some banks where the account of the deceased had a balance of less than $25,000, for example.

The indemnity is often 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, as the Grant itself acts as protection.

Applying for urgent release of funds

Banks and other organisations generally release enough funds from the estate of the deceased to pay for funeral costs prior to the granting of probate, provided there is appropriate supporting documentation, such as the invoice from a funeral home. 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 funds of the deceased. Banks and other organisations may immediately release part or all of the funds they hold 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 assets for the deceased and would require the production of appropriate supporting documentation. This may include proof of death, a certified copy of the claimant’s identification, a copy of the Will (if there is one), and indemnity forms. Each asset holder will have different requirements.

Proof of death

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 six weeks to be issued. However, when a coroner's inquiry is taking place, a death certificate may not be issued for many months, or an interim death certificate may be provided. 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 Coroners Court of Victoria or from the Registry of Births, Deaths and Marriages as proof of death, provided an undertaking is given to produce the full death certificate when it is received. 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 may require further information if there are any differences between the coroner's certificate and the death certificate.

If there are difficulties with the 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.

When death cannot be proven

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.

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.

When the beneficiary is deceased

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.

When the original Will is missing

If there is only a copy of the Will available, a Grant may still 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
• 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.

Generally, if the Will was with the testator and cannot be found on their death, it is presumed it was destroyed with the intention of it being revoked. However, this presumption may be rebutted.

When 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. Where there is no Will, a set of rules known as the laws of intestacy provide a formula for the division of assets between the surviving relatives.

It is only if there are no living relatives within the specified categories that the assets of the estate would go to the government. In other words, assets of the estate would only go to the government if the deceased person had no living family member at the date of their death, such as a spouse, partner, child, parent, sibling, grandparent, aunt, uncle, or cousin.

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 person’s assets, such as the deceased person’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 $486,870 of the estate plus interest, all of the deceased person’s personal chattels, and one half of the remainder of the estate. The remaining half of the residuary estate is shared between the children who are not of that partner. The value of the statutory legacy is updated each year on 1 July. The statutory legacy of $486,870 is current as at 1 July 2021 and will be updated again on 1 July 2022. These provisions change if the deceased has more than one partner at the time of their death or if the value of the estate is less than the statutory legacy.

Superannuation entitlements of the deceased (AKA death benefits)

The superannuation entitlements of a deceased person (known as death benefits) do not always form part of the deceased person's estate and so can often be distributed without the need for a Grant. These entitlements may include the deceased person’s accumulated member’s balance as well as insurance proceeds. The deceased may have executed a “binding death benefit nomination” form, which designates where the deceased person wanted their balance to go. This may be directly to a dependent, such as 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 which will provide claim forms, advise who could potentially make a claim (such as spouse/partner, children, financial dependents) and advise of their requirements for the release of death benefits.

Power of attorney

Enduring powers of attorney, and all other powers of attorney (other than powers of attorney given for security), 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 assets of the deceased. Only the executor of the Will, or the person or people appointed under letters of administration, will be entitled to administer a deceased person's assets.

Where to get help

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