Probate applications in Victoria
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Making a probate application
Probate is the process undertaken by the executor of an estate to prove the validity of a will.
Probate applications must be made to the Probate Office. At least 14 days before a probate application is made, you need to file an advertisement with the Probate Office of your intention to apply. This is important because it notifies the public (including family members and creditors of your estate) that a probate application will be made.
The actual probate application must be supported by several documents.
The first key document is an affidavit that must be signed by the executor. The affidavit must exhibit a copy of the will and a certified copy of the death certificate. The affidavit must also confirm various matters regarding the deceased, the will and the witnesses to the will.
The second key document is an inventory of assets and liabilities. The inventory must list all assets owned by the deceased and all their liabilities, with sufficient detail to identify each of the assets and each of the liabilities.
Sometimes it is necessary to file additional documents, such as an affidavit regarding the will’s execution (if the will was undated or if there is a question about whether the will was properly signed) or medical evidence if there are questions about the deceased’s capacity at the time the will was signed.
Once the probate application and supporting documents are filed with the Probate Office, you would need to send the original will to the Probate Office.
Requisitions
The Probate Office may raise requisitions regarding the probate application. Requisitions are questions or requirements raised by the Probate Office that must be fulfilled for the probate application to be granted. Requisitions range from asking why the will has an unexplained staple mark on it, to questions dealing with the deceased’s medical capacity at the time they made the will.
After probate is granted
Once probate is granted, the executor has the legal right to deal with assets of the deceased in accordance with the will and to administer the deceased estate. That means the executor can distribute the assets in accordance with the will.
Executors have a number of important duties and obligations contained in the Administration and Probate Act 1958 and the Trustee Act 1958 when it comes to administering the estate, including keeping full and accurate records of how the estate has been managed and distributed and summaries of financial transactions.
Executors must be mindful of the statutory administration period, which is 6 months in Victoria from the date probate is granted. This is the period during which claimants can challenge the will and make claims against the estate. Executors should not distribute assets of the deceased estate until after the expiry of this 6-month administration period. Executors who ignore this requirement and distribute assets before the expiry of this period can be held personally liable by the beneficiaries of the will or by a claimant against the estate.