Before a deceased person’s estate can be distributed to any beneficiaries, there are a few steps that must be taken, and Probate is one of them. With decades of experience providing practical advice in relation to Wills and Probate, if you need a power of attorney lawyer or estate dispute lawyer, Melbourne can trust the team at Robert Wood and Associates. One question we are frequently asked is “How long does probate take?”, so here we will look at the Probate process and outline a few factors that can influence how long it may take.
What is Probate?
Probate is a legal process where the Supreme Court of Victoria certifies that:
- A person has passed away.
- The deceased left a valid Will.
- The executor(s) named in the Will have the authority to administer and finalise the deceased’s estate.
A Grant of Probate is not always necessary to administer an estate, it depends upon the assets that have been left behind and the requirements of the asset holders. A Grant of Probate is often required by many institutions before they will communicate with executors and allow access to assets.
Applying for a Grant of Probate
Probate generally takes around 30 days to be granted in Victoria, but complex situations may take longer. The process involves a few different steps, including:
- Intention to apply for Probate advertised online for at least 14 days prior to any application being lodged.
- Application completed and witnessed.
- Application lodged with the Supreme Court.
- Grant of Probate received.
If the deceased has not left behind a valid Will, you cannot apply for a Grant of Probate, instead you need to apply for Letters of Administration. This is essentially the same, in terms of authorising someone to administer the estate, and is typically obtained by the person who is next-of-kin to the deceased.
Timeline for Probate
- Finding the Will, obtaining all the necessary information required by the Supreme Court as well as receiving the Death Certificate can take a number of weeks, so it will likely be at least a month after death before you can even make an application.
- Once you have all of the necessary information and the death certificate in your possession, you can advertise your intention to apply for Probate on the website of the Supreme Court, as mentioned above, this must be advertised for at least 14 days.
- Once lodged, the Court may take up to 8 weeks to grant Probate; this is completed using the electronic Supreme Court filing system, so you do not have to go to a Court hearing.
Factors that Can Cause Delays
The Court may raise a ‘Requisition’ asking for more information before they review the application – this can sometimes delay matters. Information may be required to:
- Prove the person had capacity at the time they signed the will (if someone doesn’t have capacity, they are not able to make their own decisions).
- Prove that the Will is the person’s most recent version.
- Resolve problems with the will, such as if it is damaged or wasn’t witnessed correctly.
A Grant of Probate Received – What Happens Next?
Once the Grant of Probate has been received, the executor may then take steps to call in the assets of the estate and begin administration process. Essentially, this is now the start of the process of administering the estate. For a simple estate, it may only take another month to cash the assets and pay them out to the correct beneficiaries. However, for complex estates it can take much longer. Just some of the factors that can add to the timeframe include:
- The type of assets included in the estate – For example, if the assets include property, it can take months for the property to be sold and settlement can take a further 60/90/120 days from the day of sale. There may also be issues locating assets if they are interstate or overseas.
- Whether anyone has made any legal claims against the estate or if anyone is likely to make a claim – There is a 6-month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate.
- Dealing with the deceased’s final tax returns – Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
- Dealing with debts – You may need to advertise for creditors to come forward and wait several months while this advertising timeframe expires.
Even when a Will is in place, the Probate and estate administering process can face challenges. In most cases, you should aim to have the estate finalised and distributed within 12 months from the date of death, but this isn’t always possible.
Looking for a Will Dispute Lawyer? Melbourne Can Rely on Robert Wood & Associates
If you are experiencing any delays with estate administration, reach out to our team today. We can provide reliable and professional advice to executors or beneficiaries of an estate. Whether you are dealing with a dispute or are having trouble with any step of the probate process, we are here to help. Call (03) 9762 3877 or enquire online now.
