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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

If you have separated from your former partner and have children, you may be eligible or may be required to pay child support. There are various options available that you may like to consider for your unique circumstances.

Administrative Assessment

You can apply to CSA for an administrative assessment of child support, which is calculated using a formula. This calculation takes into account:

  • the incomes of both parents,
  • the care arrangements for the children, and
  • the ages of the children.  

If there are different care arrangements for various children, then the level of child support payable for the children may differ. If a paying parent has children from other relationships, a more complex formula is applied, and will affect the amount of child support they have to pay.

If you are to pay or receive child support (where there are children from only one relationship or marriage) you can use an online estimator on the CSA website to work out the amount of child support that you are likely to pay or receive if an assessment is undertaken.

Once CSA makes the assessment, child support becomes payable. Departure from the formula is possible in appropriate circumstances.

There are limited reasons why CSA will change an administrative assessment. Some of these reasons include circumstances where the assessment does not correctly reflect:

  • one or both parent’s income, property and/or financial resources,
  • their capacity to earn income,
  • the costs of raising a child, which may be significantly affected because the child is being cared for, educated or trained in the way both parents intended (for example, where private school fees are payable for the child), and/or
  • because the child has special needs (including medical costs).

It is possible to lodge an objection to a decision of CSA in certain circumstances and within prescribed time frames, although late objections may be considered in limited situations.

Objections may be lodged if you believe CSA has relied on incorrect information (including income) and has either failed to consider all relevant facts or has not correctly applied the law.

Once the internal review process within CSA has been undertaken there is a right of review to the Social Security Appeals Tribunal and ultimately, to the Federal Circuit Court of Australia. This is only in cases where it is claimed that the assessment was legally, not factually, wrong.

Private arrangements

You are able to make private and enforceable arrangements with the other parent where both of you are agreeable. These arrangements are commonly preferred by parents when there are private school fees, private health care and other significant expenses for the children that may not be taken into account using the CSA formula. Also, some parents may agree to make lump sum payments which are credited against an ongoing obligation to pay, which may allow for greater security.

Binding Child Support Agreement (BCSA)

A mandatory requirement of entering into a BCSA is that you and the other parent each receive independent legal advice before entering into the agreement, and also before terminating it. If either person refuses to engage a lawyer, then a BCSA is not an option.

Generally, there is no requirement for an administrative assessment to be in place prior to making or accepting a BCSA, unless it includes lump sum payment obligations. In that situation, an administrative assessment can be obtained at the time the BCSA is registered with CSA.

As the name suggests, a BCSA is intended to be binding and can only be brought to an end in very limited circumstances.

Limited Child Support Agreement (LCSA)

In contrast, you are not required to obtain legal advice with respect to a LCSA, although it is recommended.  

Unlike a BCSA, a LCSA must provide a rate of child support that is equal to or more than the amount payable under an administrative assessment.

Also, either you or the other party can apply to terminate a LCSA after 3 years of its signing or if the annual rate of child support payable under a notional administrative assessment changes by more than 15%.

How can Sharrock Pitman Legal help?

When making arrangements for your children it is important to understand your individual circumstances to ensure that your rights are not compromised. If you would like assistance or to discuss your matter, our Accredited Specialist Family Law team would be more than happy to help. Call us on 1300 205 506 for a free 15 minute no obligation initial phone consult, or send your enquiry to family@sharrockpitman.com.au.

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

,

.

Ath Balaskas

For further information contact

Ath Balaskas

Ath 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 Ath on her direct line (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 Supreme 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 published on the Supreme Court website for at least 14 days prior to any application being lodged.

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 usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes 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 or Letters of Administration. 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.