When a person passes away, the assets they hold in their personal capacity, including bank accounts, shares, property, cash, jewellery and furniture, must be distributed in accordance with the terms of their Will or the laws of Intestacy.
A Grant of Representation is essentially a certificate issued by the Supreme Court of Victoria which allows an Executor or Administrator to wind up the affairs of the deceased so that their assets may be called in and distributed to beneficiaries.
There are two types of Grants of Representation:
A Grant of Probate is applied for when the deceased left behind a Will, and a Grant of Letters of Administration is applied for where the deceased did not leave behind a Will (or, for some reason, the Will they left is considered incomplete, partially ineffective or invalid).
There are a few key matters the Court will require proof of when making an Order for a Grant of Representation, which are:
To find out more about the different types of Grants and the requirements for each, our team has prepared a further article on ‘A Grant of Probate or Letters of Administration?’ which may be of assistance.
If you want to learn more about how an estate is administered if a person dies without a Will, please read our article ‘What happens if I die without a Will?’.
Since 1 July 2020, all applications for Grants of Representation must be made online using the Supreme Court of Victoria’s new online RedCrest Probate system. Victoria is the second state in the country to have an online system, with South Australia being the first.
The standard forms required for a Grant of Probate or Letters of Administration (such as Affidavit of Executor and Inventory of Assets and Liabilities) will now auto-generate in RedCrest, using information prepopulated in a smart form, and all exhibits (documents containing evidence of the various abovementioned matters) must be uploaded to RedCrest. These forms are then downloadable, to be printed and executed.
Some documents still need to be sent to the Supreme Court of Victoria as hard copies via post or hand delivery, including the Originating Motion and original Will (where applicable).
As part of the change to the online system, Grants of Representation will no longer be issued in hard copy. Instead, an online Grant will be made available to the RedCrest account holder who lodged the application (i.e. the solicitor). These grants will contain the application number and a unique identification code, which can be used by asset holders (such as banks, superannuation funds and aged care providers) to prove the Grant’s authenticity.
Due to the complex legal nature of accurately collating details of the assets of an estate, preparing and properly executing the requisite Affidavit of Executor and Inventory of Assets and Liabilities and the ongoing estate administration that is required both before and after a Grant is issued, it is strongly recommended that you still obtain legal assistance.
If issues arise in the documentation you file in RedCrest, depending on the capacity in which you apply, there may be serious consequences. For example, one of the documents required to be filed with the RedCrest application is what is known as an Affidavit. A sworn Affidavit containing inaccuracies or falsehoods may lead to the criminal charge of perjury. In the state of Victoria, perjury is considered to be a serious offence, carrying a maximum penalty of fifteen (15) years imprisonment. It is important to note that these risks may be mitigated by way of obtaining proper legal assistance.
Furthermore, the Supreme Court of Victoria can and will issue requisitions for any errors contained within a RedCrest application. The following issues are common examples of the types of errors that will be requisitioned by the Court:
Where the death certificate of a Will-maker refers to dementia or Alzheimer’s disease, an application must be supported by evidence of what is known as “testamentary capacity”. In order to prove testamentary capacity, it is necessary to show that the Will-maker understood the nature, extent and effect of the Will as well as the absence of any impairment affecting capacity to prepare the Will. For further information on Testamentary Capacity, please refer to our article ‘Contesting a Will’.
In the event that issues have arisen in respect to the execution of the deceased’s Will, an application to RedCrest must be supported by an affidavit of due execution. Such issues requiring evidence of due execution include, but are not limited to, where a Will contains no or an insufficient attestation clause and where a Will was (or appears to have been) executed by a blind or illiterate person.
Where an estate’s assets are provided in error or contain mistakes, the Court may return an application or request further information. An example of such an error is including the whole value of a property that is held by the deceased as a “tenant in common” with another party (here only the deceased’s percentage or portion of ownership should be considered).
An application for a Grant of Probate or Letters of Administration is a process best undertaken by a properly qualified and experienced lawyer. At a time which is often difficult given the loss of a loved one, the confidence that comes from having an experienced lawyer involved in the process will give you significant peace of mind. Even in a simple estate administration, there can be matters which are not straightforward.
We provide expert, tailored and timely assistance with estate administration, which can often be a complex process. Our team of expert lawyers and probate clerks will work alongside you through this process to ensure that your loved one’s Will is administered properly and efficiently, and that all your duties and obligations as an Executor or Administrator are met.
Get started with our easy online form, send us an email or simply give us a call.