When a person dies in Victoria leaving assets, to distribute those assets to beneficiaries, a grant of representation which is issued by the Supreme Court is required. A grant of representation is a legal document that allows an Executor (or Administrator) to deal with those assets.
There are a number of types of applications for grants of representation that can be made to the Supreme Court of Victoria.
The type of grant appropriate for you will depend on a number of factors, including whether or not the deceased left a valid Will upon their death.
This article explores five different types of grant applications: Grant of Probate, Letters of Administration (with the Will annexed), Letters of Administration, Limited Grants and a Reseal.
What is a ‘Grant of Probate’?
An application for a Grant of Probate is one of the more common types of applications.
This type of application is applied for when a deceased leaves a valid Will.
The Executor is appointed by the deceased through the deceased’s Will and is the person who will make this type of application to the Court.
The application involves providing the original Will to the Court and details of all of the assets and liabilities of the deceased as at their date of death.
Once the application has been granted, the Court will issue a Grant of Probate to the Executor.
The Grant of Probate provides confirmation that the Will of the deceased is valid, and that the Executor can proceed with the administration of the Estate and in accordance with the terms of the valid Will.
What is a ‘Grant of Letters of Administration (with the Will annexed)’?
A Grant of Letters of Administration (with the Will annexed) is appropriate where the deceased left a valid Will at the date of their death, however, there is no Executor available to apply to the Court for the Grant of Probate.
For example, John Smith appointed Sally Smith to be his Executor and is Sally Smith was unable to act then Ben Smith as his substitute Executor. However, if both Sally Smith and Ben Smith predeceased the deceased, then the person who makes an application for a Grant of Letters of Administration (with the Will annexed) is the beneficiary with the majority interest under the Will of the deceased.
Once the application has been granted by the Court, the person who made the application will be authorised to act on behalf of the Estate. This person is called the ‘Administrator’.
What is a ‘Grant of Letters of Administration’?
An application for a Grant of Letters of Administration is suitable where the deceased did not leave a Will or where the Will of the deceased is invalid. This is referred to where a deceased died ‘intestate’.
A Will may be regarded as invalid if it has not been executed in accordance with the provisions of the Wills Act 1997 (Vic). For example, where the Will is not in writing, the Will is not properly witnessed in accordance with the legislation or if the testator (the person making the Will) did not intend to execute the Will.
The person who makes this application must be the next of kin of the deceased. The Administration and Probate Act 1958 (Vic) provides a list of the persons in an order of priority who are able to make the application. The list includes the lawful spouse or domestic partner, children (excluding stepchildren but including children adopted by the deceased) and extends to other more remote next of kin.
Once the application has been granted by the Court, the administration of the Estate will be distributed in accordance with the provisions of the Administration and Probate Act 1958 (Vic) also referred to as a distribution upon intestacy.
What is a ‘Limited Grant’?
Connecting line: When a person dies in Victoria leaving assets, to distribute those assets to beneficiaries, a grant of representation which is issued by the Supreme Court is required. There are a number of types of grant applications and the application appropriate for you will depend on a number of factors. This week, we explore Limited Grant applications.
A Limited Grant is appropriate where the Executor or Administrator of the Estate is required to act on behalf of the Estate for a specific purpose or for a specific duration. A specific purpose may include where the deceased operated a business prior to their death. A Limited Grant may be necessary to continue operating the business and to preserve and protect the assets of the business. A specific duration may include where the deceased entered a contract of sale prior to their death and there is an upcoming settlement of the deceased’s property. A Limited Grant may be required to effect the settlement of this property.
Once the application has been granted by the Court, the Executor or Administrator who is authorised to act can proceed to deal with the Estate within the restrictions and conditions of the Limited Grant.
What is a ‘Reseal’?
A reseal application is suitable where the deceased leaves assets in more than one jurisdiction including Victoria.
For example, John Smith passed away in the United Kingdom leaving a bank account valued at $500,000 and a property located in Victoria. John Smith’s Executor has applied for a Grant of Probate in the United Kingdom to administer the bank account. However, to deal with John Smith’s property in Victoria, the Executor will need to apply to the Supreme Court of Victoria for a ‘Reseal’ of the Grant issued in the United Kingdom.
The purpose of a Reseal application is to request the Court to recognise the original grant of that other jurisdiction. In this instance, John Smith’s Executor is requesting for the Supreme Court of Victoria to recognise the original Grant issued in the United Kingdom.
Once the application has been granted by the Court, Victoria will recognise the original grant issued in the United Kingdom to be valid within Victoria.
The Reseal will now authorise John Smith’s Executor to deal with the estate property located in Victoria.
If you need assistance with applying for a Grant of Representation or to administer an estate, please contact Kimi Shah or Rachel Fletcher.
