What Exactly Is Probate?
Probate is the legal process that confirms the validity of a deceased person’s Will. If the Will is deemed legitimate, the court issues a Grant of Probate. This document officially recognizes the executor named in the Will, giving them the authority to handle the division of the estate and its assets.
Who Has the Right to Apply for a Grant of Probate?
Even if you’re a close family member—such as a child, partner, or parent of the deceased—it doesn’t automatically mean you can manage or divide their estate.
The only individual who can apply for Probate is the executor named in the Will. To qualify, the executor must also be at least 18 years old. Usually, the executor is someone specifically chosen by the deceased and is named in their Will. In most cases, the executor is aware of their role before the person passes away.
What If the Executor Is Under 18 When the Loved One Dies?
If the named executor is younger than 18 at the time of death, the court will usually appoint their legal guardian to act as executor until the minor reaches adulthood.
This highlights the importance of carefully selecting an executor while drafting your Will. If you prefer someone other than the minor’s guardian to manage your estate, it may be better to wait until the individual is of legal age before appointing them as executor.
Why Is Probate Necessary?
Good question! A Grant of Probate is required when the deceased leaves behind assets that need to be distributed, such as:
- Funds in a bank account held solely in their name.
- Property or properties owned solely by them.
- A Refundable Accommodation Deposit (RAD) paid for aged care.
Financial institutions like banks won’t release funds or transfer assets without a Grant of Probate. Essentially, Probate provides the executor with the legal authority to manage the estate and distribute its assets as specified in the Will.
What Happens If There’s No Will?
If your loved one didn’t leave a Will, the process changes slightly. In this case, you’ll need to apply for a Letter of Administration, which serves a similar purpose to a Grant of Probate but applies when no Will exists.
To be eligible for a Letter of Administration, you must:
- Be the spouse of the deceased, or
- Be a next of kin (e.g., a child, sibling, or parent).
The court can grant Letters of Administration to more than one person, such as both a sibling and a spouse. This document authorizes you to manage the deceased’s estate in the absence of a Will.
How Can I Apply for Probate in Victoria?
If you’re based in Victoria and need to apply for Probate, we’ve created a detailed guide to walk you through the application process. Residents of NSW can also find a separate guide tailored to their state’s requirements.
Ready to Get Your Affairs in Order?
If you haven’t written your Will yet or chosen an executor, now is the time to act. You can start drafting your Will online in as little as 15 minutes, ensuring your wishes are carried out when the time comes. After all, no one wants their hard-earned assets to end up in the wrong hands.
Disclaimer: This article provides general information and should not be considered legal, financial, accounting, or tax advice.