WILLS, ESTATE PLANNING & DECEASED ESTATES

Deceased Estates

At Nevett Ford, we understand that losing a loved one is a difficult and emotional time. It is important that you and your family have the time to grieve for your loss, however there are legal steps that need to be taken at this time.

“I was helped through a difficult estate process by Stephanie and Mei. Both were compassionate and kind, easy to contact and quick with responses to any questions or concerns I had. Their communication was always very clear. Very easy to deal with and great from day one, I really appreciate the assistance they gave me.”

We know that dealing with the task of finalizing someone’s affairs can be confronting and challenging during your grief.

We understand that for a lot of people, this is unfamiliar territory and can be overwhelming.  We are able to assist clients throughout this process.  Every situation will be different and there are many things that may need attention such as court applications, closure of bank accounts, dealing with superannuation and insurance policies as well as others.

Nevett Ford provide end-to-end estate management which includes:

  • Application for a Grant of Probate or Letters of Administration,

  • Identification and collection or transfer of bank account funds, shareholdings and other assets by the deceased,

  • Identification of superannuation interests including any applicable binding death benefit nominations,

  • review of applicable insurance policies to ascertain whether death benefits are payable to the estate,

  • disposing of or dealing with any property held by the deceased,

  • assistance with any tax liabilities on testamentary distributions,

  • assistance with any final tax return for the deceased and any prior year tax returns not yet lodged, and

  • distributing the deceased estate to beneficiaries.

If an estate dispute arises, our experienced estates litigation team is on hand to support and guide you every step of the way.

Some common questions we receive about managing the affairs of deceased loved one.

Who administers the estate?

An executor is a person appointed by the deceased in his or her Will to administer the estate or if the deceased died without a Will, an administrator will administer the estate.  An administrator is usually the deceased’s next of kin.  

What if the deceased didn’t leave a Will?

If someone has died without leaving a valid Will, they will have died “intestate” and the estate will be divided according to the rules of intestacy.  The person who administers the estate is referred to as an administrator and will usually be the deceased’s closest next of kin and can apply for Letters of Administration.

The laws of intestacy in Victoria establish the order of priority for potential beneficiaries of an estate. This can be complicated and we would suggest that where someone has died without a valid Will, legal advice be obtained.

What is the difference between a Grant of Probate and Letters of Administration?

A Grant of Representation is a legal document issued by the Supreme Court, which enables the executor or administrator to deal with the estate assets.  It allows the deceased’s money held in banks, managed funds and so forth, to be collected, their debts to be paid, and their property to be sold or transferred.  The Grant is proof that the person named in the Grant is entitled to collect and distribute the estate of the deceased.

The different Grants made by the Court are:

Probate
Is obtained when an executor named in the Will makes an application to prove and register the Will and obtains formal authority to administer the estate in accordance with its terms.

Letters of Administration (with Will annexed)
Is similar to a Grant of Probate however the person applying to the Court is someone other than the executor named in the Will.

Letters of Administration
Is obtained when a person dies intestate (without a valid Will) and is usually applied for by the deceased’s next of kin.

Do I need to obtain a Grant of Representation?

Many assets of an estate cannot be dealt with without a Grant being provided.  These include any real estate, aged care accommodation bonds, bank accounts with a balance over a certain amount and shareholdings. 

If the deceased owned only jointly held assets, then a Grant is usually not required to transfer these assets.

Is there a time limit for a Grant of Representation to made?

No, however if more than 3 years from the deceased’s date of death, you will need to provide reasons for the delay in your Application. 

What is the process?
  • Review the deceased’s final Will (if located)

  • Ascertain the deceased’s assets and liabilities as at their date of death

  • Determine whether a Grant of Representation is needed

  • If a Grant is required, which type should you apply for?

  • Advertise your intention to apply for a Grant

  • Prepare the relevant Application and supporting documents required

  • File the Application with the Probate Office

  • Receive the Grant

  • Redeem any assets such as bank accounts, superannuation, etc.

  • Finalise any remaining taxation issues

  • Transfer or distribute the estate assets in accordance with the deceased’s Will or intestacy laws

Where do you advertise?

An Applicant must publish a notice of the intended Application for a Grant through the Supreme Court of Victoria.  This allows the deceased’s creditors to make a claim on the estate, and also provides an opportunity for other interested parties to file an objection if they believe they have a claim to the estate.

How long does the process take?

While the Grant of Representation should be received within 4-6 weeks of being filed, the timeframe for the whole estate administration process will vary depending on the estate assets, beneficiaries and terms of the Will.   Sometimes a Will provides people to receive a continuing benefit from the estate.  For example, the deceased might have wanted one beneficiary to receive regular payments over a long period, or might have wanted money kept for a beneficiary until a certain age. 

What is involved after a Grant is received?

Once you have the Grant, you must gather in all of the deceased’s assets and take steps to pay any debts or taxes owing by the deceased.

Depending on the assets owned by the deceased at the time of death, and what is stated in the Will, 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. If assets are liquidated, a bank account will have to be opened in the estate’s name, into which any sale proceeds should be deposited, and from which creditors must be paid.

Once the assets have been collected, you will need to ascertain the debts owed by the deceased at the time of death. This includes funeral expenses and income tax.  If you have paid for expenses relating to the estate, you are entitled to claim reimbursement.  

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 in accordance with the Will or intestacy rules if there is no Will.  It is important to administer the estate accurately, as some family members may be aggrieved if they are not provided for.

As the executor/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.

Does an executor get paid?

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. 

What are the costs involved?

We know that advice should not come at an exorbitant cost. Nevett Ford offers access to experienced lawyers at the most affordable rates. We are able to offer you a fixed fee for our services in most instances.  It is worth noting that the costs associated with acting as Executor/Administrator, such as our legal costs, are taken from the estate prior to distribution.

I have made an appointment with Nevett Ford to discuss an estate, what do I need to provide?

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 is certain information and documents you will need to provide. While you may not have them right away, at some point we will need the following:

  • Documents:

    • Will (if any)

    • Death Certificate

  • Information:

    • Assets and liabilities of the deceased

    • Deceased’s personal details

    • Executor/Administrator’s personal details

    • Beneficiary names and contact details

OUR DECEASED ESTATES TEAM

Richard Hamilton
Peter Lumb
Andrew Lumb
Stephanie Chafer

Topics We’ve Written About

My Loved One Has Died. What Do I Do?

My Loved One Has Died. What Do I Do?

After the death of a loved one, it is important that you take the time to grieve for your loss. This emotional time can be made more stressful for some as there are legal steps that need to be taken during this difficult time.  Finalising someone’s affairs and...

read more
Estate Planning: The top 3 things you need to know

Estate Planning: The top 3 things you need to know

The idea of estate planning is often sensitive and daunting, which causes a lot of people to put it off for as long as possible. Unfortunately, the reality is that anything could happen to us at any point in time and this could create unnecessary financial mess when...

read more
Can I include cryptocurrency in my Will?

Can I include cryptocurrency in my Will?

Cryptocurrency such as Bitcoin has been gaining popularity over several years as a common investment for many people.  It is because of this growing interest in digital currency, there is now a need to provide for it in your Will.  As this form of asset is not your...

read more

If you have been appointed an executor of an estate or have any queries and would like one of our team members to contact you, please complete the below details and we will contact you shortly.

    Contact us

    Nevett Ford Melbourne Pty Ltd

    ABN: 144 697 790

    Level 16, South Tower, Rialto Building, 525 Collins Street
    Melbourne, VIC 3000