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Do you 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:


CALL: (03) 8561 3318

The information contained in this article is current as at 21 August 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.

Victoria’s Courts and Tribunals have adopted varying approaches to respond to coronavirus (COVID-19). Each Court has provided detailed statements regarding their approach which can be found on their respective websites. This article seeks to provide a brief overview of the measures that have been taken at this stage, and will focus solely on the response of the Courts and VCAT in relation to civil matters. For information regarding criminal matters or intervention orders, follow the links provided to the relevant court websites.

VCAT

Under the current business and industry Stage 4 restrictions, VCAT has been classified as “Permitted Work Premises” and will remain open to hear urgent and priority cases. Cases that are currently listed over the next three weeks have been determined by the President to be urgent or priority cases and will proceed. Accordingly, parties should assume their case will be heard unless they hear otherwise from VCAT.

As was the case under Stage 3 and as of 18 May 2020, where possible, VCAT hearings will continue to be held by telephone or video conference. VCAT will endeavour to make contact with parties to confirm whether they can attend their scheduled date either by telephone or video conference. In circumstances where a case should be conducted face-to-face, VCAT will adjourn to a later date.

It is important to note that VCAT is still accepting applications that fall within their jurisdiction and that parties are reminded to be cognisant of relevant deadlines.

Magistrates’ Court

Since the introduction of Stage 4 restrictions, while all Magistrates’ Court continue to remain open, physical attendances will be limited to urgent and priority court matters. Such urgent and priority matters relate to:

  • bail and remand;
  • family violence and personal safety intervention orders;
  • warrants;
  • civil;
  • Victims of Crime Assistance Tribunal; and
  • all other matters deemed a priority, including where an accused is in custody.

All attendances at a court building must be by prior arrangement with the exception of media and urgent family violence applications.

Civil

The following Practice Direction No. 20 of 2020 is for the period of the declared State of Disaster from 2 August 2020 - 13 September 2020 and revokes the prior Practice Directions No. 12 of 2020:

Commencement of proceedings

All arrangements for the filing and initiation of Complaints by Electronic Data Interchange remain unchanged. The Court will no longer accept filing of proceedings or applications via the email address civilcoordinator@courts.vic.gov.au. The Court will not accept any document filed in person at any Registry, except where a litigant is self-represented. The initiating process is to be mailed or scanned and emailed to the Proper Venue of the Court. Emails for the Proper Venue are available on the Magistrates’ Court of Victoria website. All Documents filed with the Court must include an email address and telephone and/or mobile telephone number of the person with carriage of the matter.

Where a fee is payable, the Registrar at the Proper Venue will contact the lodging Party by telephone to facilitate payment via a credit card. Alternatively, payment can be forwarded by cheque or money order. Upon payment of the prescribed fee, the document will be accepted as filed, then issued and returned.

Directions hearing and contested hearings

The Magistrates’ Court will continue to hear Applications which would ordinarily be listed in a Practice Court and determine any unresolved Applications “on the papers”. One day prior to the return date of the Application, the Parties must exchange written submissions (limited to two A4 pages). The Court will consider the submissions and make Orders “on the papers” or make further directions, including to direct the Party’s attendance at Online Magistrates Court or in person hearing.

In the event that the Court determines that further submissions are required, the Parties will be contacted by the Registry and directions given, including directions if necessary for appearance via Online Magistrates’ Court or in person hearing. Urgent injunctions will be referred immediately to a Magistrate in chambers for direction in its listing management.

County Court

As a result of greater flexibility being afforded during Stage 4 restrictions, trials will only be vacated and re-timetabled on the basis of COVID-19 restrictions if no reasonable alternative exists. The responsibilities of all parties and their legal representatives to comply with the provisions of the Civil Procedure Act 2010 (Vic) continue to apply. Where possible, hearings in the County Court will be conducted remotely. However, in accordance with the Stage 4 Directions, the Chief Judge will consider whether to grant permission for a matter to be conducted involving the physical attendance at court of legal practitioners, the accused or other court users. This will be determined on a case-by-case basis, in circumstances where:

  • such physical attendance is necessary
  • there is no reasonable alternative, and
  • the matter is urgent or of priority.

Civil

Commencement of proceedings

As has been the case for many years, electronic filing of documents is the accepted manner for lodging documents for filing with the County Court. Parties are requested to maximise the use of the Court’s electronic filing facilities, CITEC Confirm, at this time. Where access to scanning technology is limited, the Court will temporarily allow documents to be signed electronically, including by having the person sign the document by typing their name in the relevant space in the signature block in lieu of physically signing the relevant document.

Directions hearings and contested hearings in the Common Law Division

The County Court’s Common Law Division uses Zoom to conduct directions hearings. The parties will be sent a link to attend the directions hearing at an allocated time, which will be as close as possible to the time indicated in the Court’s directions hearing notice. With respect to contested hearings, it is anticipated that these will proceed as remote virtual hearings, irrespective of their length.

Directions hearings and contested hearings in the Commercial Division

Where parties would previously have requested a Directions Hearing, they should now complete a “Request for Interlocutory Determination” form (available on the County Court website) and email it to the Commercial Registry copied to all parties. The Court will then decide whether the dispute can be listed for remote eHearing or should be determined “on the papers”, and will notify the parties accordingly. Most disputes will be listed for remote eHearing, unless it is a dispute where reserved written reasons are likely to be required and the parties can reasonably be expected to deal adequately with the issues in dispute in writing.

The Commercial Division will be receptive to requests to modify its procedures to deal with any specific concerns. This includes urgent requests resulting from unexpected disruptions from COVID-19, for instance, as a result of the unexpected unavailability of any party, practitioner or witness who is involved in a proceeding. Any urgent requests should be emailed to commercial.registry@courts.vic.gov.au copied to all parties and marked “Urgent COVID-19 Request”.

All Commercial Division contested hearings will continue to be conducted via remote eTrial until further notice.

Supreme Court

Civil matters will be heard by Webex, Skype or Zoom depending on the requirements of the proceeding. Ahead of each hearing, the Court will contact the parties to confirm the method of the virtual hearing, including further information about how the hearing will be conducted.

Common Law Division

To ensure the Court can continue to deliver core and vital services during the pandemic, the Common Law Division has introduced changes to its case management processes and procedures. These changes include:

  • Trials that would have been heard before a jury will now proceed before a judge sitting alone, unless a judge adjourns the proceeding.
  • Trials and all other hearings will be heard using remote telephone or videoconferencing facilities for parties, counsel and witnesses unless a judge directs otherwise. Regional circuit trials will follow the same approach.
  • Parties will be contacted by the case management team ahead of all hearings to provide information relevant to their conduct.  
  • Whether a matter is heard and how will be determined by the allocated judicial officer.
  • Electronic court books will be required.
  • Judgments will be delivered without parties’ attendance.

For updates or for more details, visit the Supreme Court of Victoria’s website.

Commercial Division

The Commercial Court will deal with directions hearings and interlocutory applications in much the same way as the Common Law Division lists detailed above.

Federal Court

Although district registries of the Federal Court are still operating, some changes have been implemented to protect the health and wellbeing of court users, staff, and the public, and access to the service counters of the district registries of the Federal Court has been restricted. There will be no face-to-face service in the Court’s district registries unless there are exceptional and urgent circumstances warranting the need for providing service in person. In exceptional and urgent circumstances, service in person may be provided after initial assessment by telephone.

The Federal Court has electronic means available for lodging documents for filing. To ensure that the health and wellbeing of court users, staff, and the public is secured, the Court expects patrons to make every effort to lodge documents for filing using eLodgment.

Staff of the Court’s district registries will continue to be in contact with the legal representatives of parties, as well as self-represented parties, to determine whether proceedings can be conducted on the papers or via telephone or other remote access technologies. Where proceedings can be conducted by telephone or other remote access technologies, proceedings will, accordingly, be listed or relisted. If alternative arrangements are not able to be put in place for listings that would ordinarily require attendance in person, such listings, if already scheduled, will need to be vacated or adjourned, other than in exceptional circumstances, and then only with the express authorisations of the Chief Justice of the Federal Court of Australia.

How can Sharrock Pitman Legal assist?

If you have any further queries in relation to the operation of the Courts during this time, feel free to get in touch with our litigation team on 1300 205 506 or by email at litigation@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

,

.

Lynda Lim

For further information contact

Lynda Lim

Lynda is a Senior Associate of Sharrock Pitman Legal. She is part of our Litgation team. For further information, contact Lynda Lim on her direct line (03) 8561 3330.

More on

Litigation [Courts & Tribunals]

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' using the electronic Court filing system. 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.