My sister in law passed away, and left behind her 11 yo boy. My husband has been named executor of her will, and also

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Customer: My sister in law passed away, and left behind her 11 yo boy. My husband has been named executor of her will, and also named guardian of her little boy. we were just wondering what legal process we have to go through.
JA: What state are you in? Guardianship law varies by location.
Customer: We are in Victoria, he is currently in NSW
JA: Do the biological parents consent to the guardianship?
Customer: Mother is dead, as per my opening question. Father is not involved, and not named on birth certificate
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Answered by John Melis in 30 mins 2 years ago
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Probate is done through the Supreme Court Probate Division.

The following link is from the Supreme Court on matters of probate.

https://www.supremecourt.vic.gov.au/forms-fees-and-services/wills-and-probate

PROBATE

All basic applications for probate require the same eight documents. Additional documents may then be required to satisfy the court as to other issues.

The eight basic documents are: notice of intention; originating motion; order; affidavit of executor; certified copy of death certificate; inventory of assets and liabilities; will and any codicil; and probate parchment.Notice of intention

This notice must be advertised in accordance with r 2A.03 of the Rules on the Supreme Court website and 14 clear days must elapse before the probate application documents are filed at the Probate Office.

When drafting the notice it is important to make the necessary changes to the standard notice so as to reflect the circumstances of the particular application, for example, if an executor has predeceased the deceased or if one of the executors has renounced, this must be stated in the notice.

If the notice is more than six months old, the court will require the notice to be re-advertised.

Originating motion

Non-contentious proceedings for a grant of probate are commenced by an originating motion. The wording in the motion as to who is making the application and the form of the application should reflect the same information as that shown in the notice of intended application for probate.

The requirements of the content of the motion are found in r 2A and Form 3-2AA of the Supreme Court (Administration and Probate) Rules 2004 (Vic).

Affidavit of executor

This affidavit contains the evidence which is required to support the application for probate. Rule 2A.04 of the Rules sets out in detail the information which must be included in the affidavit and the documents which must be exhibited. The general heading for the affidavit and all of the other application documents can be found in Form 3-1A.

Exhibited to this affidavit will be: certified copy of the original death certificate (plus translation if death in a country where English is not the first language); original will and codicil; and the inventory of assets and liabilities.Inventory of assets and

liabilities

Rule 2A.04(2)(d)(iii) of the Rules requires an inventory to be exhibited to the affidavit of executor.

The inventory must set out which sufficient detail the assets and liabilities (worldwide) of the deceased as at the date of death. The inventory must include values for each asset and liability. The funeral account and any liabilities incurred post death must not be included in the inventory.

If the value of the property is not known, it is permissible for the executor to provide an estimate of the market value of the property. Care should be taken, particularly in relation to real property, that the estimate used is as accurate as is possible.

The will and codicils

The will and codicils must be exhibited to the affidavit of the executor. This will mean that an exhibit note must be either stamped or handwritten on the original documents. Do not staple or attach a separate typed exhibit note to these documents.

Affidavit of publication and searches

It is necessary in Victoria for the application to be personally filed at the Probate Office. Therefore on the day of filing the application it will be necessary for the solicitor or an employee of the solicitor to sign an affidavit exhibiting a copy of the notice of intention and confirming whether or not any other applications have been filed, whether or not any caveats have been lodged and whether or not any wills have been deposited with the court: r 2A.05 of the Rules.

Probate parchment

It is necessary for the solicitor preparing the application for probate to also file a probate parchment with the court. The court will then affix the seal of the court and date the document, once probate has been granted.

When probate is granted the court will attach a copy of the will (and codicil) to the grant.

the Supreme Court

The following documents must be filed with the court: originating motion; order; affidavit of executor; certified copy of the original death certificate (plus translation if death in a country where English is not the first language); will and codicil; inventory of assets and liabilities; and any other annexures referred to in the affidavit of executor; affidavit of publication and searches with notice of intention exhibited; any other affidavits as required in the client’s particular circumstances; probate parchment; and bank/trust cheque in payment of probate application filing fee.

You have a legal right to protect your interests in this important situation.

If you would like to talk on the phone about this issue I invite you to select call services.

​Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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