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ADMINISTRATION AND PROBATE ACT 1958

Table of Provisions

  • 1 Short title and commencement  
  • 3 Definitions  
  • 4 Application of Act  

PART I--GENERAL

Division 1--Interpretation

  • 5 Definitions  

Division 1A--Deposit of wills with registrar

Division 2--Grants of probate and administration

  • 6 Jurisdiction of Court to grant probate etc.  
  • 7 Grant of probate etc. on evidence or presumption of death  
  • 8 Grant on presumption of death  
  • 9 Revocation of probate etc. of person living at date of grant  
  • 10 Effect of revocation  
  • 12 Grants of probate and administration by registrar  

Division 3--Devolution of real estate etc.

  • 13 Real estate to vest in executors and administrators  
  • 14 Rights and duties of executor or administrator with respect to real estate  

Division 4--Executors and administrators

  • 15 Executor etc. neglects to prove, renounce or bring in the will  
  • 16 Cesser of right of executor to prove  
  • 17 Executor of executor represents original testator  
  • 18 Right of proving executors to exercise powers  
  • 19 Estate of intestate to vest in State Trustees between death and grant of administration  
  • 20 Power to grant representation of estate separately or together  
  • 21 Executor not to act while administration is in force  
  • 22 Administration pending litigation  
  • 23 Continuance of legal proceedings after revocation of temporary administration  
  • 24 Grant of administration where personal representative is abroad  
  • 24A Uncared for property  
  • 25 Administration with will annexed  
  • 26 Administration during minority of executor  
  • 27 Rights and liabilities of administrator  
  • 28 Duty of personal representative as to inventory and accounts  
  • 29 Effect of death on certain causes of action  
  • 30 Executors or administrators may serve notice on claimant  
  • 30A State Trustees' power to make distribution after notice of refusal  
  • 30C State Trustees' power to pay balance if deceased had property in and outside Victoria  
  • 30D Supreme Court—limitation of jurisdiction  
  • 30E Transitional for certain State Trustees powers  
  • 31 Protection of persons acting on probate or administration  
  • 31A Protection of payments or transfers of property without requiring the production of a grant of representation  
  • 31B Threshold amount  
  • 31C Liability of person fraudulently obtaining or retaining estate of deceased  
  • 31D Persons liable for the waste or conversion of a deceased's estate  
  • 34 Discharge or removal of executor or administrator  
  • 34A Application for administration of estate administered by a creditor  
  • 35 Court may assign bond and remove administrator  

Division 5--Administration of assets

  • 36 Creditors to stand in equal degree  
  • 37 Estate of deceased assets for payment of debts[2]  
  • 39 Insolvent estates—payment of debts  
  • 39A Solvent estates—payment of debts  
  • 39B Solvent estates—pecuniary legacies  
  • 40 Charges on property of deceased to be paid primarily out of the property charged  
  • 41 Effect of assent or conveyance by personal representative  
  • 42 Validity of conveyance not affected by revocation of representation  
  • 43 Right to follow property etc.  
  • 44 Powers of management  
  • 45 Powers of personal representative for raising money etc.  
  • 46 Powers of personal representative as to appropriation  
  • 47 Power to appoint trustees of minor's property  
  • 48 Obligations of personal representative to give possession  
  • 49 Power to postpone distribution  
  • 50 Court powers where exception to ademption causes unjust advantage or unjust disadvantage  
  • 51 Beneficiary entitled to traceable income from sale of adeemed assets  
  • 54 Payment of distributive shares of infant children  
  • 56 Reference to Statutes of Distributions  

Division 7--Practice procedure offences etc.

  • 57 Administration guarantees  
  • 58 Caveat may be lodged[3]  
  • 65 Executors' etc. commission  
  • 65A Reduction of excessive commission or fees  
  • 65B Benefits to executor under remuneration clause  
  • 65C Consent to executor's remuneration by interested beneficiaries  
  • 65D Information to be provided by an executor to interested beneficiaries  
  • 65E Executor may elect to charge fees instead of commission  
  • 66 Concealment of will a misdemeanour  
  • 67 Practice in probate jurisdiction  

Division 8--General saving provisions

  • 69 Act not to affect certain cases  
  • 70 Right to take action by purchase  

PART IA--INTESTACY

Division 1--Application and definitions

  • 70A Application of this Part  
  • 70B Definitions for this Part  
  • 70C Survivor requirements  
  • 70D Entitlement to distribution from estate in more than one capacity  
  • 70E Rights of creditors not affected  
  • 70F Date of valuation  
  • 70G Inter vivos gifts do not affect entitlements  

Division 2--Trust for sale of intestate's property

  • 70H Trust for sale of intestate's estate  
  • 70I Investment of estate pending distribution  

Division 3--Distribution if intestate leaves a partner

Division 4--Partner's rights as to estate property by election

  • 70O Application of this Division  
  • 70P Partner may make partner's property election to acquire intestate's interest in property of estate  
  • 70Q Partner to be given right to elect notice  
  • 70R Time for making partner's property election  
  • 70S How partner's property election is made  
  • 70T Revocation of partner's property election  
  • 70U Court may make acquisition authorisation order if election applies to estate property which is part of larger aggregate  
  • 70V Valuation of property which is subject of election  
  • 70W How price of property to be satisfied and effect on residuary estate  
  • 70X Timing of transfer to partner  
  • 70Y Restriction on disposal of property from intestate's estate  

Division 5--Distribution if intestate leaves multiple partners

Division 6--Distribution if intestate leaves no partners

  • 70ZF Application of Division  
  • 70ZG Distribution to children  
  • 70ZH Distribution to parents  
  • 70ZI Distribution to siblings  
  • 70ZJ Distribution to grandparents  
  • 70ZK Distribution to aunts and uncles or to cousins by representation  
  • 70ZL Crown to take estate if no person entitled  

PART II--SMALL ESTATES

  • 71 Aid of registrar or clerk in procuring grant of probate etc.  
  • 72 Registrar of probates may issue probate or administration if satisfied of certain matters  
  • 73 Registrar may require proof of identity  
  • 74 Satisfaction as to value  
  • 75 Registrars may exercise certain powers  
  • 76 Applicants residing within 32 kilometres of Melbourne  
  • 77 Registrar of probates may require further materials  
  • 78 Registrar of probates need not proceed in difficult cases  
  • 79 Administration of small estates  

PART III--RECOGNITION OF FOREIGN GRANTS

  • 80 Definitions  
  • 81 Probates and administrations granted in United Kingdom  
  • 82 Caveat may be lodged  
  • 83 Intention to apply for seal of Court to be advertised  
  • 84 Re-sealing of foreign grants  
  • 85 Executor or administrator of estate of deceased person  
  • 86 Administrator under power of attorney  
  • 87 Scots confirmation  
  • 88 Application of this Part to certain other countries  

PART IV--FAMILY PROVISION

  • 90 Definitions  
  • 90A Eligible person may apply for family provision order  
  • 91 Court may make family provision order  
  • 91A Factors to be considered in making family provision order  
  • 93 Service of notice of application  
  • 94 Powers of Court  
  • 96 Powers of Court in making orders  
  • 97 Contents of family provision order  
  • 98 Adjustment of probate duty  
  • 99 Time within which application may be made  
  • 99A Protection of personal representative against certain claims  

PART IVA--TRANSITIONAL

  • 99AA Transitional provision—Wills Act 1997  
  • 99AB Further transitional provision—Wills Act 1997  
  • 99AC Transitional provision—Administration and Probate (Dust Diseases) Act 2000  
  • 100 Transitional provision—Statute Law Amendment (Relationships) Act 2001  
  • 101 Transitional provision—family provision—Justice Legislation Amendment (Succession and Surrogacy) Act 2014  
  • 102 Transitional provision—payment of debts—Justice Legislation Amendment (Succession and Surrogacy) Act 2014  
  • 103 Transitional provision—small estates—Justice Legislation Amendment (Succession and Surrogacy) Act 2014  
  • 104 Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014  
  • 106 Transitional provisions—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017  
  • 107 Power to resolve transitional difficulties in proceeding—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017  

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