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Typically, when someone dies in Victoria, the Executor of their Will must obtain a Grant of Probate from the Supreme Court to deal with their estate. But when is Probate not required in Victoria?
Is Probate mandatory?
There is no legal requirement in Victoria that an Executor apply for Probate before they deal with the estate of someone who has passed away. Probate is not a mandatory process and is only required when asset holders and other institutions request a Grant of Probate before allowing access to the deceased person’s estate.
When is Probate required in Victoria?
Probate is required in Victoria when an asset holder or institution requests that an Executor produce a Grant of Probate before they can access the estate of a deceased person.
A Grant of Probate is issued by the Supreme Court of VIC and proves the following:
- The named person has died (the deceased)
- The deceased left a valid Will
- The Executors named in the Grant of Probate have the authority to access and deal with the deceased’s estate
You can determine whether Probate is required in VIC by:
- Contacting asset holders and asking whether they require a Grant in order for you to deal with the estate
- If there are minimal assets, you may only need to produce a certified copy of the Will and death certificate
- Contacting Probate Consultants for a Free Consultation regarding the estate.
When do asset holders require a Grant of Probate?
Asset holders have clearly defined policies as to when Probate is required. These policies are informed by a number of factors including:
- The type of asset
- Its value
- How it was owned
You need a grant of probate in the following situations:
- Seeking the refund of an Accommodation Bond (RAD) from an aged care facility
- Transferring title of real estate that was held solely by the deceased, or as tenants in common
- Accessing funds in a bank account over a certain value, usually $50,000.
- Dealing with a shareholding over a certain value, usually $50,000.
- Accessing Superannuation that is payable to the estate
Contact us for a Free Probate Assessment and find out whether you require Probate.
When is probate not required in Victoria?
Generally speaking, you do not require Probate in Victoria unless an asset-holder requests it before allowing you to access and deal with a deceased person’s estate.
The other main reasons Probate is not required in VIC are:
When someone in Victoria dies without a Will, they have died intestate. When intestacy occurs, Probate is not necessary, but then next-of-kin will need to apply for Letters of Administration (LOA) to deal with the deceased person’s estate.
If you require assistance with an application for Letters of Administration, contact us on 1300 561 803 for a Free Consultation.
2 Joint Ownership
When assets are held jointly it means that the deceased owned the asset together with another person(s), usually their spouse, domestic partner or family. This most commonly occurs with real estate, where spouses own their home as Joint Tenants.
Where assets are jointly held, the deceased’s ownership rights to an asset do not form part of their estate when they die, and instead ownership passes automatically to the surviving joint owner. This is the rule of Survivorship.
Whilst Joint Tenancy of real estate is the most common form of joint ownership, the following assets can also be owned jointly:
- Bank accounts
- Motor vehicles
- Digital assets
Probate Consultants Tip
If real estate is held as Tenants in Common, a Grant of Probate is required because the deceased’s share in the property forms part of their estate and does not automatically pass to the other Tenant(s) in Common.
Real property that is not owned as Joint Tenants will always require Probate, as it does not fall under the rule of Survivorship.
Probate Consultants can help you find out how property is owned and whether Probate or Letters of Administration are required to deal with the title. Contact us today for a Free Consultation.
3 Small Estates
Usually, an Executor will not require Probate to deal with an asset that is under $50,000 in value.
Every asset holder and institution has a policy that outlines when Probate is required for an executor to access a particular asset. Typically, asset holders do not require Probate in VIC when an asset is valued at less than $50,000, however, sometimes the threshold $20,000.
Figuring out if Probate is needed
Evaluating whether Probate is required in Victoria doesn’t have to be complicated or costly. Probate Consultants make it simple for you to know whether a Grant of Probate or Letters of Administration may be required and if so, are here to guide you through the entire process with ease.
Probate Consultants is the simplest and most cost-effective way for Victorian families to easily access expert guidance and specialist advice on applications for Probate and Letters of Administration. We simplify all the legal jargon while getting the same outcome as a Probate Lawyer without the expensive legal fees.