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Do you need help with Probate?

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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

As the world around us continues to change, our Family Law system is making every endeavour to adapt to ensure that it continues to be accessible to those in need of judicial assistance during the coronavirus pandemic. Chief Justice Will Alstergren has implemented a number of changes to the operation of both the Federal Circuit Court and the Family Court of Australia, including most recently the implementation the COVID-19 list, established exclusively to deal with urgent parenting disputes related to the pandemic.

What is the COVID-19 List and how can it help me?

The COVID-19 List is a speciality division which commenced operation in the Family Court of Australia and Federal Circuit Court of Australia on 29 April 2020 and is currently proposed to operate for approximately 3 months. The list is designed to enable the Courts to identify and prioritise cases which need urgent attention due to the COVID-19 crisis. Eligible cases will receive immediate attention and be heard by a judge within 72 hours of being assessed.

The COVID-19 list is designed to hear matters about disputes relating to:

  • An increased risk of family violence resulting from the restrictions imposed on families during the COVID-19 pandemic.
  • Current parenting arrangements which involve supervised contact, where the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.
  • Current parenting arrangements which involve travel between States or Territories due to the parents residing in different States with the child being unable to travel pursuant to the arrangements due to border restrictions.
  • Medical risks due to either the parents and/or the child having tested positive for COVID-19 which prohibits the parties from fulfilling their parenting obligations (either due to sickness or concerns of infection).

If you have a dispute which may be appropriate to be heard by the COVID-19 List, you will need to ensure that you meet all of the following criteria in order to be eligible to make an application:

  • You are filing the application as a direct result of the COVID-19 pandemic.
  • Your matter is urgent.
  • Your application is accompanied by an affidavit of no more than 6 pages, which uses the COVID-19 template affidavit.
  • You have made reasonable attempts to resolve the issue (provided that it is safe to do so).
  • Your matter is capable of being dealt with by electronic means.  

I think I am eligible – how do I apply?

If you think you may need to make an application to Court to be placed in the COVID-19 list, it is recommended that you first seek advice from a Family Lawyer, who can assist you through the process.

All applications must be filed electronically by email and must include the following documents:

  • The Application;
  • A supporting affidavit (no more than 6 pages);
  • A cover letter explaining how the application meets the criteria; and
  • A Notice of Risk or Notice of Child Abuse, Family Violence or Risk of Family Violence, dependent upon which Court the application is being filed in.

If your application successfully meets the criteria, you will be given a court hearing date before either a Registrar or a Judge within 3 business days. Alternatively, if your application is not considered to have met the criteria, it will be listed in the regular duty list, for a hearing which will be heard in the usual time-frame.

The hearings will be conducted electronically either via Microsoft Teams or telephone and the Judge or Registrar will deal with the urgent issues in dispute.

I am not eligible – what other options do I have?

The Courts are still operating for matters outside of the COVID-19 list, albeit in a more limited capacity than usual. You are still able to make an application to the Court, and while urgent matters will be given priority, the Court will still be hearing applications.

Duty list hearings (which is the first hearing date you will receive when you make a Court application) are being staggered to alleviate congestion. This means that the hearing dates for some non-urgent matters are being vacated. It is important to note that parenting matters will often be given priority, so it is advisable to attempt alternative means of resolving most property disputes.

If your matter is considered “non-urgent”, you should consider other options of dispute resolution, including negotiating through a solicitor or arranging for a mediation (which can take place remotely).

The Court has also offered some useful guidance for parents in particular on how to best tackle disputes in such a challenging time period, which can be found here. For more guidance on how to best approach parenting issues, see our guide for parenting during a pandemic.  

I have an existing matter in the Court – what will happen with my matter?

The Courts still continue to remain open to assist families in the midst of disputes. The Courts have prepared a useful FAQ for parents to clarify common concerns, which can be found here.

As with hearings in the COVID-19 list, any hearing you may have coming up will likely be scheduled to occur electronically (either via telephone or Microsoft teams). If your matter is considered non-urgent, your hearing may be adjourned to a later date. If this is the case, you or your solicitor will be notified prior to the hearing date.

If your matter is scheduled for a mediation, it will likely be arranged to occur electronically, with minimal disruption to your matter. Mediations are being facilitated through software such as Microsoft Teams, Immediation and Zoom.

If your matter is scheduled to have a child inclusive report prepared, Family Consultants will consider whether this can be done remotely, with interviews to be conducted by telephone or video. In limited circumstances where a remote interview is either not possible or not considered appropriate and the assessment is considered to be urgent, an in person child interview and observation can still be conducted.

Are there any other changes I should be aware of?

Yes, the Court has also made some modifications to their process and procedures to minimise necessary physical conduct and as such, prioritises the health and safety of the community.

1. Filing of all documents

All documents may now be lodged with the Court electronically. It is preferred that documents are lodged via the Commonwealth Courts Portal, where possible, however if documents are unable to be lodged through the portal, they can be emailed to the registry for electronic filing.

2. Subpoenas and inspection of documents

Subpoenas can now only be viewed by appointment. Appointments will only be arranged if the subpoenaed documents relate to an urgent matter.

3. Annexures to affidavits

In the Family Court, annexures can now be electronically filed together with the affidavit, so long as the total length does not exceed 2cm (this equates to approximately 200 pages, depending on the thickness of the paper). If the annexures exceed the 2cm limit, you can make enquiries with the registry to arrange for the annexures to be provided via USB.

There are no changes to the Federal Circuit Court in this respect, as annexures can ordinarily be filed electronically with affidavits.

4. Signatures on documents and affidavits

In light of the current circumstances making it very difficult for documents to be witnessed, the Courts are now permitting unsworn versions of documents which are usually required to be witnessed by a qualified witness (such as affidavits and financial statements) to be filed. The Court will accept the unsworn version of the documents, subject to the deponent of the document being made available by telephone or video conference or in person, at a subsequent court event, to swear or affirm the contents of the document are true and correct.

Further to the relaxed witnessing requirement, the Court is also permitting all documents (including consent orders, affidavits, initiating applications and financial statements) to be signed electronically. An electronic signature in this instance can include having the person signing the document type their name in the relevant space in the signature block in lieu of physically singing the document.

How can Sharrock Pitman Legal help me?

We are Accredited Family Law Specialists, having extensive experience and expertise in assisting customers with their family law matters. The pandemic is presenting a variety of challenges for all of us, but we are here to help you through these difficult times. If you need advice about the impact of the coronavirus pandemic on your family law matter or assistance with an urgent court application, please contact our specialist family law team on 1300 205 506 or via email at family@sharrockpitman.com.au and it would be our pleasure to assist you.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

Katharine Layne

Katharine is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Katharine on (03) 8561 3319.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate 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. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, 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.

“A Grant of Probate 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.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.