If someone dies in Australia, leaving assets that need administration, the next of kin of the deceased person or an executor may need to apply for a grant of probate or administration to manage the estate.
You must wonder – what is probate in Australia? Probate in Australia is a court-directed proceeding authenticating a Will (if you have one) and approving the name of the executor of the Will.
If you wish to apply for a grant, the following are the ways to obtain the same:
- Apply for probate as a self-represented person (without a solicitor); or
- Take assistance from a solicitor to act on your behalf;
- You can entrust a trustee company to act as executor or administrator;
- Moreover, you can mandate the Probate Office’s small estates optional assistance to design your application.
In most cases, solicitors or trustee companies file about 95 per cent of applications. However, applying for a grant is often a straightforward procedure, and if you wish to apply for a grant of probate or administration, you can follow the 5-steps below.
Did you know that application for a grant of probate is not compulsory in all cases? The decision to apply for the commission depends on the asset type of the deceased and the requirements one needs to fulfil for institutions holding those assets. If you are wondering whether you need to obtain a grant, you can read the information about the grants of probate and the administration of deceased estates. Moreover, one can apply for probate or administration only to the Supreme Court of Victoria if there are assets in Victoria.
Before choosing the grant type, one must find whether the deceased person left a valid Will. To find the Will, one may need to make enquiries with the friends and family of the deceased and search through their papers. If the deceased has executed a valid Will, then one would either apply for probate or letters of administration with the will annexed.
The following are the criteria to apply for probate:
- One must be over 18 years, and
- An executor is named in the will.
To apply for the letter of administration with the Will annexed, one must be the primary beneficiary under the will, and if the executor is not able to apply. For instance, if a person named as executor in the Will dies before the deceased and no substitute executor is named in the will, the primary beneficiary must apply for the letter of administration. Moreover, if the deceased did not leave any validly executed will, the beneficiary may need to apply for letters of administration.
The criteria to apply for letters of administration is that one must be the closest next of kin of the deceased. The order of priority for the next of kin of the deceased is as follows:
- lawful spouse or domestic partner
- children, excluding stepchildren but including children adopted by the deceased
- brothers or sisters
- remoter next of kin.
The next step is to announce the intended application for a grant through an advertisement published on the probate online advertising system 15 days before applying with the Probate Office. If you are advertising for a probate grant or a grant of letters of administration with an annexed Will, your advertisement and subsidising testimony must refer to any administrators who are not applying. Moreover, one must view the advertising guidance notes and frequently asked questions before placing your advertisement.
The next step to completing an application for a probate grant is to log in to RedCrest-Probate. If someone does not have an account in the RedCrest-Probate, they can register to begin the new application process. For this, you can select the new application and then select the application for a grant or reseal option.
After this, the user is guided through questions to prepare an affidavit and an inventory of assets and liabilities. Once you generate these documents, you can review the content, make any necessary changes, and then go back to your application to correct the details and update the document sheet again.
In case you wish to pause your application process, you can do so as your draft application remains in the system for 30 days from the date it was last saved. One can find the application by clicking on the My Drafts and Filings tab of RedCrest-Probate.
Once you print the affidavit, an authorised person for taking oath witnesses all exhibits referred to in the affidavit present at that time. One can also book an appointment to get the affidavit witnessed at the Supreme Court of Victoria in Melbourne.
After the witnessing process of the affidavit is complete, you can upload the same and all exhibits and a copy of the advertisement to RedCrest-Probate in PDF format. You can scan and upload the documents to your draft application in the “My Drafts and Filings” tab on the home screen.
One must not remove any staples or bindings while scanning the original will. After applying, an originating motion will be generated. You are not required to do anything further if applying for Letters of Administration. However, if applying for Probate, Letters of Administration (with will annexed) or a Reseal, you need to print and deliver the originating motion with the original will to the court within 28 days of applying.
If you are applying for a grant of letters of administration or a probate grant, the guide will be of great assistance to you. However, if you have any further queries, contact your nearby probate consultations and speak to an expert on the subject today!