A short message from one of our probate lawyers.
If you phone, email or skype, or can find your way to Glen Waverley in the eastern suburbs of Melbourne, you will find a team of quality Wills and Probate Lawyers ready to lend you a helping hand with your Probate Law matters.
It is always difficult dealing with the death of a loved one. As Probate Lawyers, our role is to make sure that you do not have to stress over the legal side of a deceased estate. We assist clients by making sure all estates are administered professionally, carefully and swiftly.
For an experienced Wills & Estate lawyer, contact one of our lawyers today. In the meantime, here’s some useful information regarding probate matters:
For most estates, a Grant of Probate or Letters of Administration is required in order to complete the administration. Without one of these documents the asset holders cannot be satisfied as to who has the correct authority to receive the deceased’s assets and may refuse to pay out.
Which one of these is required will depend on whether the deceased left a valid Will.
- Grant of Probate – this 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.
- Letters of Administration – if there is no Will, then you instead obtain Letters of Administration. This is effectively the same as a Grant of Probate, 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.
For more information on the timeframe and requirements for obtaining a Grant of Probate or Letters of Administration, see our article: How Long Does Probate Take?
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We assist executors and administrators in ensuring that estates are properly administered. Administering an estate can take anywhere from a few weeks to years, depending on the assets involved, the terms of the Will and beneficiaries. Some common tasks of an executor and administrator include:
- Calling in, selling or transferring assets
- Locating beneficiaries
- Paying creditors
- Completing tax returns for the deceased and estate
- Establishing trusts
- Distributing the estate to the beneficiaries
- Defend the estate from improper challenges or legal action
Some estates can be administered without the need for any formal processes such as a Grant of Probate or Letters Administration. This is usually in circumstances where:
- Assets are owned jointly – Most assets held jointly with a surviving party will automatically become the property of the surviving joint owner (there are some exceptions). There will still be steps required to complete a transfer to the surviving joint owner.
- There are limited assets – Many assets holders, such as banks and share registries, agree to make things a bit easier if they are not holding assets of any great value. They generally set a cap (most commonly less than a cap of between $15,000 – $30,000) under which they will release assets without insisting on a formal Grant of Probate or Letters of Administration. Of course, you will still need to satisfy the asset holders that you are entitled to receive the funds and they will often ask for an ‘indemnity’ to protect them if it turns out they paid to the wrong person.
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Superannuation does not automatically form part of an estate and can alternatively be paid directly from the superfund to a ‘dependant’ of the deceased. In this context a ‘dependant’ is a spouse, child or person in an interdependent relationship with the deceased.
- Binding Nominations – if there is a valid binding nomination completed with the superannuation fund then any death benefit would be paid as directed by this nomination.
- Trustee Discretion – if there is no valid binding nomination, then the trustee of the superannuation fund will usually have the power to decide who the death benefit should be paid to, subject to the terms of the Superfund Trust Deed. Potential beneficiaries should therefore notify the superannuation trustee of their interest in receiving the death benefit so that any competing claims can be considered.
The above is true both for a retail superannuation fund and a self managed superannuation fund. The added complication for self managed superannuation funds is that the trustee of the fund is usually someone in the family who may not be best placed to make an independent assessment regarding payment of death benefits, if there are completing claims.
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In order for a Will to be valid the testator must have had the capacity to understand what they were signing and chose to sign free from any overt pressure or influence. The most common grounds used to argue that a Will is invalid are therefore:-
- That the testator was too unwell (often with dementia or similar degenerative illness) to have the capacity to reasonably assess who should receive their estate; or
- That the testator was forced by someone into making their Will. This goes beyond a person asking or suggesting that a Will should be made to favour them and involves actually pressuring the testator to sign against their better judgement.
If you believe a Will is invalid you should take urgent steps to prevent a Grant of Probate from being issued and this is done by lodging a Probate Caveat. Alternatively, you can seek to have a Grant of Probate revoked if it has already issued, but this should occur as soon as possible after the Grant.
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When it comes to estate planning or probate matters, we are:On Your Side
Here is what some of our very satisfied clients dealing with our Probate Lawyers have said:
“Given the difficult situation, my lawyer was empathetic, thorough and prompt which helped me immensely. Thanks!”
“Very happy with advice and options given and no pressure. I decided how much work needed to be done. My lawyer was excellent support. My final outcome was exactly what I wanted.”
“Prompt service and feeling cared for.”
“Just a comment on how impressed I was with the outstanding service I received when my lawyer assisted me with my employment law issue. My lawyer helped me immediately and I cannot comment enough on the professionalism demonstrated.”
Can we help with your probate matters?
More about Estates from our Reading Room
12 January 2018
In theory, upon your death you can leave your estate to anyone. However, with this power comes responsibility. The law may intervene if you fail to adequately provide for a person to whom you owe a moral and financial duty. This intervention can come in the form of a challenge ...
12 September 2017
The issue The power to make a Will and chose how to distribute your estate comes with responsibility. The law can intervene if a Will Maker (called a ‘Testator’) fails to properly consider who should receive their estate or if the Will results from illness, fraud or improper pressure. If ...
15 October 2017
The issue One of the first questions we are asked when dealing with an estate is ‘How long does probate take?’. There is unfortunately no set answer to this question. However, in this article we will set out the factors that influence how long it will take to obtain a ...