Probate

When it comes time to administer an estate, an eligible person may feel the Will does not fairly provide for them or that they have been wrongfully excluded from mention. In these cases, there is the option to either contest the Will or challenge the Will depending on their circumstances.

If you intend to apply for further provision in Victoria, this can only be done after there is a Grant of Probate or Letters of Administration.

What is a Grant of Probate?

When the Court issues a Grant of Probate it confirms the validity of a Will, which means it is found to be legally effective.

Any person in possession of the deceased’s Will must present it to the Court as soon as reasonably possible to get the Probate proceedings underway. Doing this helps avoid administration delays, as the executor can only distribute assets after a Grant of Probate has been obtained from the Registrar of Probates in the Supreme Court.

While there are a handful of cases where probate is not required, these instances are few and far between. For example though, if the deceased’s assets are scarce, hold little value, do not include real estate or are jointly owned obtaining a Grant of Probate may not be necessary.

A Grant of Probate cannot be applied for if a person dies without a Will or an executor has not been appointed, as there is no document to legally validate. Instead, an application for a Grant of Letters of Administration can be made. The deceased’s next of kin usually apply for this, such as their spouse, domestic partner or child. In such cases, the assets form a residuary estate, which is then administered by a court-appointed personal representative for the testator.

The role of an executor during probate

The testator usually appoints the executor of their Will. Often this person is a friend or family member.

The appointed executor is under no legal obligation to accept the role and may reject it if they wish. In such cases, the Court assigns a personal representative for the estate.

The executor is responsible for dealing with the testator’s estate after they pass away. Common duties of the executor include arranging the deceased’s funeral, distributing estate assets and identifying beneficiaries. They may also be required to settle outstanding expenses, debts or taxes of the deceased or sell assets if the testator has instructed them to do so.

In addition, the executor of a Will is responsible for applying for and obtaining the Grant of Probate or Letters of Administration.

Once the Court issues probate the executor receives a letter of administration or authority, which gives them the ability to legally act on behalf of the estate. They can then begin completing their duties and once the six month window following probate has lapsed, they are authorised to distribute estate assets to the named beneficiaries as directed by the deceased in their Will.

Probate and contesting or challenging a Will

The Administration and Probate Act 1958 (Vic) specifies that a Will contest can only be filed by an eligible person within six months of a Grant of Probate or Letters of Administration being issued. After the six months have lapsed, the executor of a Will can begin distributing assets to the beneficiaries.

Under unique circumstances the Court may allow for a Will to be contested or challenged outside of this time frame, however it is very uncommon and by no means guaranteed. It is also important to note that an application for extension cannot be submitted once the estate has already been administered.

If you are considering contesting a Will or challenging a Will an estate lawyer can determine your eligibility and the merit of your case under Victorian legislation. As the vast majority of estate disputes can only be pursued in the six month window following probate, it is best to consult an estate lawyer as soon as possible.

Contact us to contest a Will or challenge a Will

If probate has been granted and you feel you were not provided with adequate provision for proper maintenance and support, you may be eligible to contest or challenge the Will. At Hentys Lawyers, we have experience dealing with hundreds of estate disputes and the majority of our cases are settled out of court.

To discuss and determine the merit of your claim, enquire with us today.