You might have recently moved to Victoria, and you happen to overhear someone talking about probate. And you feel clueless about what probate is and why someone needs it.
Is this you?
Well, if it is, here’s a detailed guide to probate in Victoria.
First, let’s see what is probate.
What is probate?
When a person dies in Victoria and leaves assets, the executor of the deceased’s will or — if there’s no will — the closest next of blood must normally finalise the deceased’s affairs.
In general, this entails collecting or amassing all of the deceased’s assets, settling any debts, and allocating the assets to the parties entitled.
These responsibilities can sometimes be completed without the involvement of the Court. However, in some cases, obtaining a grant of probate may be required before these obligations may be accomplished.
The consequence of the grant of Probate
Once probate is granted, the executor receives the deceased’s assets. This signifies that the assets are now within the executor’s control, who is rightfully eligible to divide those assets in line with the will of the deceased.
In general, the executor has no right to a fee from the deceased’s estate, although the Supreme Court of Victoria can make decisions allowing the executor to keep up to 5% of the deceased’s assets.
When the executor distributes the assets, a certain sequence must be followed. The executor must settle things in the following sequence:
- First, the assets must cover the deceased’s funeral expenditure.
- The administrative fees.
- Debts of the deceased
- Finally, other obligations.
Whatever remains after meeting all the aforesaid payments can be allocated according to the will of the will-maker.
How to Apply for Probate in Victoria
To file for a Grant of Probate in Victoria, you must be listed as the Executor of the Will and be over the age of 18.
The crucial stages of filing for Probate are:
- Publicise your Notice of Intention to Apply for Probate. You must wait 14 days for any of the deceased’s creditors or other parties involved to lodge an objection if they feel they have a claim against the estate.
- Complete your application for Probate.
- Submit your application to the Probate Office of the Supreme Court of Victoria.
Costs incurred to apply for Probate in Victoria
A grant of Probate in Victoria entails several expenses. These are some examples:
- A charge for publicising the intention to file for Probate.
- A filing fee for your application with the Probate Office. The Probate Office determines the appropriate fee, which depends on the estate’s size and value.
Sometimes people may also opt to hire a lawyer or legal services to help them file for a Grant of Probate, as the procedure may be time-consuming and difficult to manage. These services may help you gather and fill out paperwork, advertise, and guide you through legal processes.
How long does it take to get Probate?
It will take about eight weeks to get a Grant of Probate once the application (made after 14 days from the notice to apply is published) has been submitted to the Court.
Discharge of the Executor
For various reasons, the executor might decide to back off. It’s not so unexpected. In this case, an executor who has already begun functioning can only voluntarily quit with the authorisation of the Supreme Court of Victoria.
The Administration and Probate Act of 1958 allows an executor to renounce probate and choose someone else to administer the estate in their stead.
This is the voluntary removal of the executor. There’s also involuntary removal. The Supreme Court has the authority to dismiss an executor who is unsuited to serve or whose prolonged appointment jeopardises the effective administration of the estate or the beneficiaries’ interests.
The court has been hesitant to specify when it is appropriate to remove an executor. However, historically speaking, the court has ruled that an executor is unviable when:
- They are insolvent or guilty of a major offence
- They fail to perform their obligations
- They create an excessive delay
- They are failing to communicate with the beneficiaries appropriately.
- There is a failure to act in accordance with a co-executor
- Or they exhibit a serious conflict of interest
Are you a beneficiary of a deceased’s estate?
People worry about inheritance tax while receiving assets from a descendent. But Australia has no official inheritance tax or estate tax.
If you sell an asset inherited from a deceased’s estate, you may be subject to capital gains tax. Dividends or rental income from inherited stocks or property are taxed as normal.
There you go!
Now you know what probate is and more.
Finally, before any of this, the will-maker must include the executor’s name during the making of the will. They may even include a second choice of executor if they are not confident with their first choice. Having more than one executor listed relieves strain on any individual while also ensuring that each executor may supervise the other executors.
Hope this guide gave you a deep dive into what probate is.