When a person dies leaving assets in Victoria, usually the executor of a person's will or the closest next of kin (where there is no will) has to finalise the deceased's affairs.
Generally this involves:
- collecting or gathering all of the deceased's assets
- paying any debts
- distributing the assets to the persons entitled.
Sometimes these tasks can be done informally, without requiring anything from the Court. In some instances, however, it may be necessary to obtain a grant of probate or letters of administration (collectively referred to as grants of representation) before these duties can be completed.
A grant of representation is a legal document issued by the Court, which enables the executor or administrator to deal with the deceased's assets. It allows the deceased's money held in banks, managed funds and so forth, to be collected, their debts to be paid, and their property to be sold or transferred. The grant is proof that the person named in the grant (called a 'legal personal representative') is entitled to collect and distribute the estate of the deceased.
There are three main types of grants:
- Probate
A grant of probate is issued to the executor(s) named in the last valid will left by the deceased. - Letters of administration with the will annexed
'Letters of administration with the will annexed' are issued where the deceased has left a valid will but the executor cannot, or will not, apply for a grant. Generally, the grant is made in favour of the persons with the greatest interest under the will - Letters of administration
'Letters of administration' are issued when the deceased person has not made a will, or the will they have made is not valid. In most instances the grant is made to the closest surviving next of kin of the deceased (e.g. a spouse or a child of the deceased) .
Before banks and financial institutions will release monies of a deceased person they need to know that they are dealing with someone who has legal authority to deal with the deceased's affairs. The grant provides that assurance and also confirms the validity of a will. However, grants are not always needed. You should contact each asset holder and find out from them directly whether they will require a grant before releasing monies.
Generally, the requirement for a grant depends on:
The nature and extent of the assets of the deceased
Often, estates are administered informally (that is, without a grant). Some organisations, such as banks and insurance companies, may release money without sighting a grant if the amount held in the name of the deceased is minimal and there are no complications. However, there may be conditions imposed.
If an executor is required to prove their title to assets of the deceased a grant will be necessary.
Whether the deceased owned real estate either solely or as a tenant in common
In this case a grant is always required.
Whether assets are jointly held
For example, if the deceased's assets are entirely held in a joint bank account, providing a death certificate may be enough for the monies to be transferred to the surviving joint holder. If real estate is held jointly then an application may be made to the Land Titles Office to transfer the property to the survivor's name.
The requirements of a superannuation fund regarding paying out a death benefit
Often, the superannuation trustees will pay the funds directly to a nominee pursuant to a binding death benefit nomination. If the nomination lapses or is invalid, the trustees may choose to pay the funds to a specific person (for example, a spouse or dependants) or to the deceased's legal representative. Staff in the Probate Office cannot provide assistance with queries regarding superannuation. You will need to contact the superannuation fund.
Applying for a grant of representation
If after reading through the information above you are certain you need a grant, we can give you general information on applying for a grant of probate or administration.