We’ve written a few guides on Probate before, so we’ll link them throughout this guide where relevant. However, the one topic we haven’t tackled in detail is who is able to apply for Probate after a loved one dies. Let’s get into it.
First things first – What is Probate?
‘Probate’ refers to the legal process of validating the Will of the deceased. The outcome (if successful) is a Grant of Probate, which means the court has legally recognised the validity of the deceased’s Will, and they’ve also recognised the executor who is now responsible for dividing the estate and its assets.
Who can apply for a Grant of Probate?
While you might be the child, partner or parent of someone who has passed and believe you should be in control of how their estate is divided, this unfortunately doesn’t mean you're actually entitled to distributing assets or dividing the estate.
The only person who is able to apply for Probate is the executor of the estate, and they have to be 18+ years old to do so. This person will be named within the deceased’s legal Will (and will likely already know that they’re been named as the executor of the estate).
What happens if the executor is younger than 18 when their loved one passes?
If an individual younger than 18 years is appointed as executor for a deceased loved one, the court will typically appoint the minor’s guardian as the legal executor until they hit the 18+ threshold.
This is why it’s really important to ensure you appoint an executor that’s appropriate at the time of writing your will (because if you’d rather the minor’s guardian doesn’t make decisions about your estate, it’s probably best to not appoint the minor until they’re, well, no longer a minor!).
Why is Probate actually required?
Good question. You’ll need a Grant of Probate if the deceased person has left assets behind that need to be distributed. For example, if they’ve left a certain amount of money in their bank account and they were the sole account holder for that account. Or, if they owned multiple properties in their name. Or, if they lived in an aged care facility and had paid a RAD bond.
Institutions like banks will require a Grant of Probate before releasing funds (or properties) into the name of the executor. So Probate will, put simply, provide you (or the executor) with all the permissions you’ll need to manage the estate and divide all assets.
What if my loved one doesn’t have a Will?
Well then, things will be a little different for you. You’ll have to apply for a Letter of Administration (which we’ve detailed thoroughly in the linked blog), but it’s important to note that you’ll only be able to apply for one if:
- You’re the spouse of the deceased
- You’re a next of kin
And yes, the court can grant Letters of Administration to more than one person (ie. A sibling and a spouse).
A Letter of Administration will provide you with permission to administer the estate when the deceased didn’t write a Will.
I need to apply for Probate, and I reside in Victoria. How do I do that?
Is it time for you to get your affairs in order? Maybe you haven’t decided on an executor yet, or haven’t written your Will at all. You can start your will online today in just 15 minutes and assure your wishes are granted when the inevitable happens. There’s nothing worse than assets landing in the wrong hands, right?
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.