What is a Grant of Representation?

A Grant of Representation is an order of the Supreme Court of Victoria which enables those named as Executors of someone’s Will or Administrators of an estate to deal with the assets of the deceased. The Grant provides official proof that the person named in the deceased’s Will is entitled to handle the estate of the deceased.

Below are the common types of Grants of Representation that may be issued by the Court:

1. Probate- Probate is granted where the deceased's last Will is proved by one or more Executors named in the Will;

2. Letters of Administration with the Will annexed– is granted where the deceased has left a valid Will but the named Executor cannot or will not apply for a Grant.

3. Letters of Administration– where a person dies without a valid Will the Court issues a Grant of Letters of Administration, usually to the next of kin of the deceased.

Estate Administration can be a long and drawn-out process, depending on the circumstances, and it is essential that the right advice is sought from a skilled legal professional at the commencement of the process.

When is a Grant of Probate or Grant of Representation required?

A Grant of Probate or Grant of Representation is required before an Executor or Administrator can deal with a deceased’s assets.  A Grant of Probate or Representation is required if the deceased holds assets in Victoria, that exceed a statutory dollar amount. Occasionally, if the deceased only held minimal funds in a bank account, an Executor may be able to access those funds and close the accounts without the requirement to obtain a grant of probate. However, in most circumstances, obtaining a grant is required.

The only exception to this is if the deceased’s assets are held jointly with someone else. If this is the case, the surviving asset holder can have these assets transferred to them without the need for a Grant of Representation under the right of survivorship.

How is a Grant of Probate or Administration obtained?

To obtain a Grant of Probate or Administration, the Executor/s or administrators must make an application to the Supreme Court. The application must include details of the deceased’s assets, proof that the applicant has the right to make the application, proof that the deceased has died and a declaration that the Executor/s or Administrators will act in accordance with the Will or in the best interests of the beneficiaries. There are steps that need to be undertaken before the application can be submitted because part of it is an affidavit to be signed by the Executors or administrators.

The application must be made in the format as accepted by the Supreme Court. If the deceased left a Will, the executor/s must ensure that the original Will is provided to the Supreme Court of Victoria with no markings or staples removed or added to the document. If this occurs, the Court may not accept the application, and they may deem the Will as invalid which means a new application for a Grant of Representation will be required and treated as if there was no Will.

What does an Executor or Administrator do once they have obtained a Grant of Representation from the Supreme Court?

Once an Executor or administrator has obtained a grant of representation, it is their role to deal with the deceased person's estate. This includes:

• calling in all the assets of the deceased;

• paying any debts, funeral and other expenses;

• dealing with specific assets as outlined in the Will if there was one;

• selling any assets as required to convert to cash; and

•  making distributions to beneficiaries in accordance with the Will if there is one or in accordance with the laws of intestacy.

An Executor or Administrator has strict legal obligations to act in the best interests of the estate and in accordance with all laws. Failing to do so could mean they are in breach of their obligations and beneficiaries could make a claim against them. When an Executor is also a beneficiary, the lines between someone’s role as Executor and beneficiary can very easily be blurred, putting an Executor more at risk of claims being made against them.

If an Executor is found to be acting in a way that is not in the best interests of the Estate or the beneficiaries, they can be held personally liable for any loss the estate or their beneficiaries have incurred and also be removed by order of the Supreme Court as Executor. For this reason, it is highly recommended that executor’s or administrator's obtain legal advice so that they are protected.

Do I need to see a lawyer to get a Grant of Probate or to administer an estate as an executor or administrator?

Whilst there is no legal requirement to see a lawyer or obtain legal advice as an executor or administrator of a deceased estate to obtain a Grant of Probate, it is highly recommended that you do.

As we mentioned, the role of an executor or administrator comes with strict legal obligations including ensuring that they act in the best interests of the estate and its beneficiaries and the laws surrounding estates. Not knowing or understanding all the steps involved in the Probate or Deceased Estate Administration process puts executors and administrators at higher risk and personal liability. 

By obtaining professional advice from a qualified deceased estate administration lawyer like Wollerman Shacklock lawyers, you get tailored legal advice to support you in your role as executor or administrator. We provide guidance and legal advice to you on every aspect of the deceased administration process, right from the very beginning of the initial advertisement requirements, through to final distribution.

Our legal advice and guidance ensures that you administer the estate with minimal risk to you. It also assists in guiding you in the event that a dispute arises or claims are made against the estate. And this happens more than you think.

Can I obtain a Grant of Probate myself without a lawyer?

You can. However, it is not recommended. The role of executor or administrator is not as simple as it may sound and carries high legal risk. Not understanding all of the steps and requirements of estate administration that should be undertaken could place you at even higher risk of claims against you. Missing one small step could cost you thousands.

Furthermore, if there is dispute amongst beneficiaries, or claims are made against the estate, you could put yourself further at risk if you do not have proper legal advice and guidance to protect both you and the estate. Is that a risk you are willing to take?

A thorough understanding of every single step of the estate administration is required to ensure Executors or Administrators are protected. Attempting to undertake the role yourself or using AI to assist is a fast-tracked way to missing a crucial step and putting yourself at risk.

Why choose Wollerman Shacklock Lawyers to assist in obtaining a Grant of Probate and estate administration?

In simple terms, we know what to do. Our experienced estate administration team provide efficient and knowledgeable legal advice on every step of the estate administration process. We guide you through the process from the initial enquiry to the application for a grant, right through to the final distribution.

We know all the intricacies required by the Supreme Court of Victoria for a successful application for a grant, minimising the chance of requisitions from the Court, therefore reducing delays and headaches for you.

We know exactly what needs to be done at every stage of the administration process to ensure you as Executor or Administrator and protected in your role. We provide legal advice on issues that arise including disputes with other executors or beneficiaries. Because we know what we are doing, we ensure that the estate is administered as efficiently as possible, avoiding long, drawn out delays.

We also offer upfront fixed fee pricing, so you know what we will be doing and how much it will cost right from the beginning of the matter. You will not get any surprise bills, nor excessive bills resulting from long, drawn out administrative processes.

If you are an executor, administrator or a beneficiary for a Victorian deceased estate and need assistance, contact our expert team at Wollerman Shacklock Lawyers on 9707 1155 or admin@wslegal.com.au.