Probate & estate administration in Victoria.

Probate is an order of the Supreme Court of Victoria confirming that a will is the deceased's last valid will and that the executor named in it has authority to deal with the estate. Where there is no valid will, the equivalent order is a grant of letters of administration appointing an administrator instead.

The grant is only the beginning. Estate administration is the work that follows: collecting bank accounts, shares, superannuation and insurance, transferring or selling property, paying funeral expenses, debts and tax, preparing accounts for the beneficiaries and finally distributing the estate.

An executor is personally responsible for getting that sequence right. The duties are set out in the Administration and Probate Act 1958 and in general law, and they run until the estate is fully distributed and accounted for.

Not every estate needs a grant. Jointly owned property, superannuation with a valid binding nomination and small bank balances can often pass without one, we check first, so nobody applies to the court unnecessarily.

Probate is granted by the Supreme Court of Victoria, and since the court moved online the process runs through its RedCrest-Probate portal. It is more exacting than most executors expect. There are notices that have to be published before an application can even be filed, waiting periods that have to run their course, and a set of sworn documents that have to line up exactly with the will and the assets, or the Registrar sends the application back.

We prepare the application so it clears the first time: the advertising, the affidavits, the inventory and any requisitions from the court. The executor is not left decoding the Registrar's requirements under pressure.

Most people accept the role of executor without realising the law treats them as a fiduciary, and holds them personally answerable if they get it wrong. An executor has to identify and secure the assets, deal with debts, funeral expenses and tax in the correct order, keep proper accounts, and only then distribute to the right people. Each of those steps carries a way to be caught out.

Timing is the trap. The law gives an executor breathing room before they are obliged to distribute, and there is a period after the grant during which a family provision claim can still be brought against the estate. Getting that sequence wrong is not a technicality.

An executor who pays the beneficiaries out too soon, in the wrong order, or before the right notices have been given can be ordered to make up the shortfall from their own money. Courts have removed executors and made them compensate the estate where the duties were not met.

None of this is meant to frighten a family member out of the role. It is the reason executors come to us: with a solicitor running the file, the notices, accounts and timing are handled and the executor stays protected. Done alone, it is a job with real personal exposure and no second chance.

Death does not end the tax questions, it opens a new set of them, and they are easy to get wrong because they are counter-intuitive. Capital gains tax, land tax and duty can all be in play depending on what the estate holds and what the executor does with it, and several valuable concessions turn on timing: act inside the window and the estate keeps the benefit, miss it and the estate can be taxed as if the asset were an ordinary investment.

The family home is the clearest example. It carries concessions that are generous but time-limited, and the clock starts at the date of death whether or not anyone is watching it. An executor who sells at the wrong time, distributes before the tax position is settled, or overlooks that an asset is passing to a beneficiary who changes the tax treatment, can hand the estate an avoidable bill.

We map the tax picture at the start, coordinate with your accountant, and hold distributions until the position is clear, so the estate is not paid out and then found to owe money the beneficiaries have already spent.

A grant of probate only has legal effect where it was made. If someone died with a grant from another Australian state or territory, or from certain overseas jurisdictions, and left assets in Victoria, that grant has to be recognised here, a process called resealing, before anything in Victoria can be dealt with.

It is a shorter path than a fresh application, but it has its own formalities and its own ways to go wrong for someone unfamiliar with the Victorian requirements. We handle reseals in both directions: bringing an interstate or overseas grant into Victoria, and helping executors here deal with assets held in other states or countries.