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Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

If you have been appointed as an executor in a deceased person’s Will, you may be wondering what exactly the role involves. You may also be wondering what you can do if you are named as an executor but do not want to act as one.

What is the role of an executor?

An executor is a person appointed in a Will to administer the deceased’s estate in accordance with their Will. This may involve a number of tasks, including:

  • closing accounts and collecting all of the deceased’s assets;
  • paying all of the deceased’s debts;
  • completing any tax returns (if required); and
  • distributing the assets to the beneficiaries named inthe Will.

You may be required to apply for a Grant of Probate before you can complete any of the above tasks. For more information about whether a Grant of Probate is needed, see our recent article What is Probate?

Do I have to accept my appointment as executor?

Even if you are named as an executor in the Will, there is no legal obligation on you to take on the role. You can choose not to act as an executor by one of two options.

1) Leave reserved

If there is another executor appointed in the Will, and they are willing to act as executor, then they can apply for a Grant of Probate with “leave reserved” to you. This means that you are allowing the other executor to administer the estate, however, you are reserving the right to be joined as an executor at a later date if you so wish.

This option does not require you to complete any paperwork, nor do you need to find a replacement to act in your place. However, it does require that there be at least one other executor appointed in the Will who is willing to act.

2) Renouncing probate

Alternatively, you may “renounce probate”. This means that you are giving up your right to act as an executor of the deceased estate. After you renounce probate, you cannot be reinstated as an executor, unless you obtain the consent of the Court first.  

If there are no other executors appointed in the Will, then you will have to renounce probate. Even if there are other executors willing to act, you may still choose to renounce probate rather than having leave reserved if this is your preference.

If you intend to renounce probate, you must do so as early as possible for several reasons:

  1. When renouncing probate, you must confirm that you have not intermeddled in the estate or undertaken any activities as executor. Once you take any steps that could be perceived as undertaking your role as executor, you can no longer renounce probate, unless you obtain permission from the Court first.  
  2. If you are appointed as the sole executor in the Will, the estate cannot be administered by a replacement executor until you renounce probate, or you are removed as executor by the Court.

To renounce probate, you will need to sign a ‘Renunciation of Probate’ form in the presence of a lawyer who will also complete an ‘Affidavit of Verification’ form. This must then be filed with the Supreme Court of Victoria (‘the Court’).  

If the Will appoints one or more other executors as well as you, then the remaining executor(s) will apply for a Grant of Probate and administer the estate once you have renounced probate. In this instance, you do not need to find a replacement.

If the Will appoints you as the sole executor, then someone else, known as an ‘administrator’, must be found to act in your place. Typically, this would be the beneficiary or beneficiaries with the greatest entitlement from the deceased’s estate. Otherwise, the Court may appoint a trustee company, such as State Trustees, if no one can be found to act as administrator. The replacement administrator would then apply for a Grant of Letters of Administration with the Will Annexed.

How can Sharrock Pitman Legal help?

Our team of Accredited Specialists in Wills & Estates Law can assist you by advising on the role of executor and can make the role easier by assisting you in administering the estate.

We can also assist you in the process of renouncing probate. Please feel free to contact us on 1300 205 506 or by email at sp@sharrockpitmanb.com.au.

We look forward to being of service.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

 Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

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For further information contact

Melinda Van Rooyen

Melinda Van Rooyen is a lawyer in our Wills & Estates team. Melinda can be contacted on (03) 8561 3311 or email melinda@sharrockpitman.com.au.

More on

Probate & Estates

If you have been appointed as an executor in a deceased person’s Will, you may be wondering what exactly the role involves. You may also be wondering what you can do if you are named as an executor but do not want to act as one.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • 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, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.