A Plain-English Guide to Probate in Victoria

Probate is the formal legal process by which the Supreme Court of Victoria recognises the validity of a deceased person's Will and grants the executor the legal authority to deal with the assets of the estate. The end result of the process is a formal court document called a Grant of Probate. This document is, in practical terms, the executor's authority to act — the legal key that unlocks the deceased's assets and allows the estate to be administered and distributed.

Without a Grant of Probate, banks, share registries, the Land Registry, and other institutions are generally not able to deal with an executor's instructions in relation to assets held in the deceased's name. The grant confirms both that the Will is legally valid — that it was made by a person with testamentary capacity, properly executed and witnessed, and that it represents the deceased's final wishes — and that the person applying is the person appointed by that Will to act as executor.

It is important to understand that probate does not create the executor's powers; those arise under the Will itself. What probate does is provide independent, court-backed confirmation of those powers — confirmation that third parties are legally entitled to rely upon. Once probate is granted, the executor can act with confidence and third parties can deal with them without fear of liability.

Probate should be distinguished from Letters of Administration, which is the equivalent court grant issued when the deceased died without a valid Will (intestate), or where there is a Will but no executor is able or willing to act. In those cases, someone — usually the next of kin or a beneficiary — applies to the Court for authority to administer the estate. The process is similar to probate but more complex, because the applicant must establish their entitlement through the statutory hierarchy rather than through the terms of a Will.

Whether probate is required depends primarily on the nature of the assets the deceased held and how they were held at the time of death. There is no single universal rule; the answer is asset-by-asset and institution-by-institution. As a general guide, probate is typically required when the deceased held real estate in their sole name, or when they held bank accounts, share portfolios, or other financial assets of significant value in their sole name.

Most banks and financial institutions in Victoria will require a Grant of Probate before releasing funds held in a solely-held account above a certain threshold. The threshold varies from institution to institution — some will release smaller amounts informally on production of the death certificate and a copy of the Will, but for any substantial account balance, probate is standard practice. Share registries almost invariably require probate before transferring shares held in the deceased's sole name. The Land Registry (now called Land Use Victoria) requires a Grant of Probate before a transfer of real property can be registered following a death.

There are circumstances where probate is not required. The most significant is where the relevant asset was held as joint tenants with another person. Property held as joint tenants does not pass through the deceased's estate at all — it passes automatically by survivorship to the surviving co-owner. The surviving joint tenant needs only to register the death with Land Use Victoria (for real property) or the relevant institution; probate is not required. Similarly, superannuation is not an estate asset in most circumstances and passes directly to the nominated beneficiary or, in the absence of a binding nomination, according to the trustee's discretion under the superannuation fund's trust deed. Joint bank accounts held with right of survivorship also typically pass directly to the surviving account holder.

The process of applying for probate in Victoria is administered through the Probate Office of the Supreme Court of Victoria. It involves several distinct steps, each of which must be completed correctly before the next can proceed. An experienced solicitor will manage the process for you, but it helps to understand the key stages.

The first step is to gather the original Will and the original death certificate. The Supreme Court requires the original Will — a photocopy is not sufficient. If the original Will cannot be located, this creates a significant complication that requires separate consideration. In parallel, the executor should begin the process of identifying and valuing all of the deceased's assets and liabilities, as an inventory will be required as part of the application.

The second step is to advertise the intention to apply for probate. Under Victorian practice, a notice of intention to apply for probate must be placed in the Legal Notices section of a newspaper approved by the Court — typically The Age or the Herald Sun. The notice must remain live for at least 14 days before the application can be filed. This notice period exists to give creditors and other interested parties an opportunity to come forward before the estate begins to be distributed.

Once the 14-day period has elapsed, the executor (usually through their solicitor) files the probate application at the Supreme Court. The application includes the original Will, the death certificate, the executor's affidavit, the inventory of assets and liabilities, and the evidence of advertising. A filing fee is payable, calculated on a scale based on the gross value of the estate assets.

The Court then examines the application. In straightforward, uncontested matters, this process takes approximately four to eight weeks from the date of filing. When the Court is satisfied that the application is in order, it issues the Grant of Probate. The grant is a sealed court document that the executor can provide to banks, the Land Registry, share registries, and other institutions as authority to deal with the estate.

Obtaining the Grant of Probate is not the end of the process — it is the beginning of the substantive estate administration. The executor's duties after probate is granted are significant, and failure to carry them out properly can expose the executor to personal liability.

The executor's immediate responsibilities include notifying beneficiaries of the grant and of the estate's likely distribution, and identifying and calling in all assets. This means contacting banks, share registries, the Land Registry, and other relevant institutions to transfer or liquidate assets held in the deceased's name. It also means notifying Centrelink and other government agencies of the death, where relevant.

Before distributing the estate, the executor must pay the deceased's debts. This includes funeral expenses, outstanding bills, tax liabilities, and any other legitimate creditors. An executor who distributes the estate to beneficiaries before paying the debts may become personally liable for those debts. If the estate is insolvent — that is, if the debts exceed the assets — the executor must administer the estate in accordance with the rules of insolvency, which establish the order in which creditors are paid.

There is a long-established convention in estate administration known as the "executor's year." This is the recognition by law that an executor should generally be given up to one year from the date of death to complete the administration of the estate and make final distributions to beneficiaries. This does not mean an executor can simply sit on the estate for a year without action; they are required to proceed diligently. But it does mean that beneficiaries cannot ordinarily demand distribution within weeks of the death. Complex estates — those involving real property, business interests, overseas assets, or family provision claims — may take considerably longer than a year to fully administer.

Throughout the administration, the executor should keep proper accounts of all receipts and payments. Beneficiaries are entitled to an account of the administration, and the executor may need to produce those accounts if any dispute arises. Andrew O'Bryan can assist executors in meeting their record-keeping obligations and in understanding the full scope of their duties.

When a person dies without a valid Will — dying "intestate" — there is no executor to apply for probate. Instead, someone must apply to the Supreme Court for Letters of Administration. This is a grant of authority to administer an intestate estate, and it serves the same practical function as probate — it gives the administrator the court-backed authority to deal with the estate's assets. The process is broadly similar to probate but involves additional complications.

The most significant complication is establishing who has the right to apply. Under the Administration and Probate Act 1958 (Vic), there is a statutory hierarchy of people entitled to apply for Letters of Administration. A surviving spouse or domestic partner has the first right to apply; if there is no surviving spouse or partner, the right passes to the deceased's children; then to other relatives in a prescribed order. Establishing the applicable hierarchy, and confirming that the applicant falls within it, requires identification of all potential next of kin — which can be complex in cases involving blended families, estrangement, or overseas relatives.

Once Letters of Administration are granted, the administrator's duties are essentially the same as those of an executor under a Will — but without the guidance that a Will provides about how the estate is to be distributed. Distribution is instead governed entirely by the intestacy rules in the Administration and Probate Act 1958 (Vic), which divide the estate according to the statutory formula regardless of the actual relationships, financial circumstances, or wishes of the parties involved. Family provision claims by eligible persons who believe the intestacy rules do not make adequate provision for them are more common in intestate estates than in testate estates, further complicating the administration.

Most probate applications in Victoria are uncontested and proceed through the Supreme Court without complication. But there are circumstances that can significantly delay, complicate, or increase the cost of the process. Understanding these possibilities helps executors and family members plan realistically and seek appropriate advice early.

Contested Wills are the most serious complication. If a person with standing to challenge the Will's validity files a caveat at the Supreme Court before probate is granted, the Court cannot issue a grant until the caveat is resolved — either through negotiation or a contested hearing. This can add months or years to the process, and significant legal cost. A validity challenge may be based on allegations of lack of testamentary capacity, undue influence, fraud, or improper execution.

Family provision claims lodged during the probate process create a different kind of complication. A claim under Part IV of the Administration and Probate Act 1958 does not prevent probate from being granted, but it does prevent the executor from distributing the estate until the claim is resolved. Executors are sometimes placed in the uncomfortable position of holding an estate in limbo while proceedings continue — managing assets, paying holding costs, and keeping beneficiaries informed about delays that are not of the executor's making.

Missing or lost Wills require a separate application to the Court to prove the contents of a lost Will, which adds complexity and cost. Overseas assets require engagement with the legal system of the relevant jurisdiction — a Victorian Grant of Probate does not automatically authorise an executor to deal with assets in another country. Insolvent estates require specific knowledge of the insolvency rules. Assets in multiple Australian states may require resealing or separate applications in each jurisdiction. Each of these complications underscores the value of having an experienced Wills & Estates solicitor guide the process from the outset.

For a straightforward, uncontested estate, the probate process in Victoria typically takes between four and eight weeks from the date the application is filed at the Supreme Court. This does not include the time required to gather documents, prepare the application, and complete the mandatory 14-day advertising period — in practice, from the date of death to the date probate is granted can easily be two to three months in an uncomplicated matter, and longer if there are delays in obtaining the original Will or death certificate, or in valuing estate assets.

The Supreme Court filing fee for a probate application is calculated on a sliding scale based on the gross value of the estate's assets. As at 2026, fees begin at approximately $200 for small estates and can reach $2,000 or more for estates of substantial value. These fees are a disbursement of the estate and are payable by the executor at the time of filing; they are ordinarily reimbursed to the executor from estate funds once the grant is issued and assets begin to be collected.

Legal costs for preparing and filing a probate application depend on the complexity of the estate. Straightforward applications — a single Will, clear asset structure, no complications — can be handled at a modest fixed fee. More complex matters involving contested elements, unusual assets, overseas property, or business interests will involve more work and higher costs. Andrew O'Bryan offers fixed fees for straightforward probate applications where possible, with clear, upfront advice about costs before work begins. There should be no surprises.

It is also worth noting that executor's professional fees — the fees charged by a solicitor or other professional acting as executor — are separate from the legal costs of the probate application. Where Andrew O'Bryan is acting as executor (as well as the estate's solicitor), he will provide transparent advice about his executor's commission entitlement at the outset.

Probate is a technical legal process, and the consequences of errors — a defective application, an incorrect inventory, a distribution made before debts are cleared, or an oversight that exposes the executor to personal liability — can be serious. Having an experienced Wills & Estates solicitor manage the process is not a luxury; in most cases, it is the practical and prudent choice.

Andrew O'Bryan provides a full-service probate and estate administration practice. His role can begin from the very first step — advising whether probate is required for a particular estate — and continues through every stage: preparing and filing the application, obtaining the grant, collecting and realising assets, managing creditors, and achieving a final distribution to beneficiaries in accordance with the Will or the intestacy rules. Where complications arise — a disputed Will, a family provision claim, overseas assets, or an insolvent estate — Andrew has the experience and legal knowledge to navigate them effectively.

For clients who have been named as executor and are approaching the role for the first time, Andrew provides practical, plain-English guidance about what the role requires, what the risks are, and how to discharge the duties properly. Being an executor is an important responsibility that most people take on only once or twice in their lives; having specialist support throughout the process is invaluable. Contact Andrew today to discuss your situation and understand exactly what probate will involve for your family's estate.