Probate Lawyer

An executor is a person assigned by the deceased in their Will to represent their estate – belongings, assets, debts, and other liabilities – following their death. The executor is responsible for ensuring that the terms of the Will are carried out according to the law and promptly – usually within 12 months.

Probate is the legal process where the Supreme Court validates a Will and the executor who is responsible for the deceased’s estate by issuing a Grant of Probate – a legal document giving the executor authority to collect the deceased’s assets and administer the estate according to the terms of the Will.

A Grant of Probate is not necessary for all situations – it depends on the nature and extent of the deceased’s assets and the complexity of their estate.

Estates with modest assets and liabilities may not require a Grant of Probate and the distribution can be handled informally. However, if there is a substantial amount of funds, shares or the equivalent, or the deceased was the sole owner of a property or bank account, then you may be required to apply for a Grant of Probate.

Keep in mind that policies regarding estates and their administration vary across financial institutions so it is recommended to inquire about the specifics beforehand. Similarly, the Grant of Probate differs according to each State and Territory. Thus, it is best to consult with wills and probate lawyers in Melbourne to determine what applies to your situation and how you should go about it.

The application process for a Grant of Probate differs across Australia and it is highly recommended for you to check with your probate and estate lawyers to ensure your applications meet all the requirements.

Generally, you would need to submit the following documents when making your probate application:

• An original copy of the deceased’s Will.
• The deceased’s death certificate.
• A copy of your oath as an executor.
• A statement detailing the deceased’s assets and liabilities.

Since an application for a Probate is a highly technical process, any error in the documents will stall the application. Thus, it is in your best interest to seek the help of experienced estate probate lawyers to ensure a successful and swift application.

If a person dies without leaving a valid Will, they have died “intestate” and the laws of intestacy will determine who is entitled to their estate.

In this situation, a close next-of-kin who wishes to inherit all or part of the deceased’s estate can apply to the Supreme Court for an administrator to deal with the distribution and management of the estate according to the relevant state law.

However, similar to the requirements of being an intestate estate beneficiary, there is a priority list for those who wish to apply for an administrator which differs according to each State and Territory:

• Spouse or domestic partner.
• Children.
• Grandchildren.
• Parents.
• Siblings
• Other family members (Uncles, Aunties, Cousins).

Letters of Administration will be issued by the Supreme Court once the application for an administrator to manage and distribute the deceased’s estate is authorised. The individual who receives this grant will be appointed as the Administrator of the deceased’s estate.

Application requirements and the process differs according to each State and Territory, however, generally, you are required to do the following:

• Advertise your intention to apply for a Grant of Letters of Administration.
• Complete the relevant application forms.
• Sign the application in the presence of an authorised witness.
• Lodge the witnessed application with the Supreme Court in your State.

Once the Court provides you with a Grant, you must gather all of the deceased’s assets and take steps to pay any debts or taxes owing by the deceased – this could include closing their bank accounts, acquiring any death benefit payable under a superannuation policy, selling or transferring assets to the beneficiaries, including real estate and shares.

You must also finalise any tax returns for the deceased, as well as for the estate (if required) and pay any outstanding income tax owing to the Australian Taxation Office.

Once all debts have been paid, you can distribute the assets to the beneficiaries following the Will or intestacy rules if there is no Will.   

Finally, as the executor or administrator, you must prepare a report and Statement of Account for the beneficiaries showing details of the assets, proceeds of any sale of assets, and expenses paid.

A Probate Caveat is a form of injunction that is lodged with the Supreme Court preventing or delaying the grant of a Probate. It is usually done by the party wishing to contest the Will.

As the Caveat may delay proceedings and result in additional legal costs for involved parties, the party filing the Probate Caveat should be aware that they may be ordered to pay the resulting legal costs of the estate.

Generally, the timeframe for the whole estate administration process will vary depending on estate assets, beneficiaries, and terms of the Will.

However, oftentimes, the pre-application process takes up the most time as people are not sure how and where to begin. Our probate and estate lawyers can sort out your application and arrange for you to sign it as quickly as possible to ensure you do not have to stress yourself figuring out the technicalities during this difficult time.

Once the application is sent to the Supreme Court, depending on your State and Territory laws, it will take about four to six weeks for the Court to review it and issue you a Grant.

An executor is entitled to be reimbursed by the estate for any amounts they have paid on behalf of the estate, provided they were appropriate amounts and may be remunerated in certain circumstances.

Any payment to an executor is referred to as a commission and in Victoria, it cannot exceed 5% of the total value of the estate assets.

Nevett Ford offers access to experienced estate probate lawyers at the most affordable rates. We can offer you a fixed fee for our services in most instances. It is worth noting that the costs associated with acting as Executor or Administrator – such as our legal costs – are taken from the estate before distribution.

When we first meet with you we will ascertain all the information required to carry out the initial steps of the estate administration; however there are certain info and documents you will need to provide. While you may not have them right away, at some point we will need the following:

• Will (if any).
• Death certificate.
• Assets and liabilities of the deceased.
• Deceased’s personal details.
• Executor/Administrator’s personal details.
• Beneficiary names and contact details.