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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

You may be surprised to learn that the majority of Australians do not need to go to Court to obtain a property settlement or to formalise parenting arrangements following a separation. In fact, it is common for most family lawyers to work primarily with clients to resolve matters through methods outside of the Court system, in an effort to avoid the stress and expense of Court proceedings. The options that are available to you are explored below, noting that some may be more suitable where there are children involved, and others where your dispute is solely in relation to the division of your assets.

Reaching an informal verbal agreement with your former partner

This option is best suited for individuals who have maintained a relatively amicable relationship through separation, and are seeking to make arrangements only with respect to their children. While an informal arrangement can work for amicably separated couples, it is important to understand that the agreement is unenforceable in the event that one party later deviates from that agreement.

Where an agreement has been reached in relation to property matters, we strongly recommend that the agreement is formalised in the form of a written document (addressed below) for the security of both parties. This will help to prevent any further claim being made in the future, if the issue were to arise.

Family Dispute Resolution (‘FDR’)

Family Dispute Resolution is a special type of mediation designed to assist separating families in conflict to communicate and reach a resolution regarding their family law dispute, with the assistance of an accredited Family Dispute Resolution Practitioner.

The Family Dispute Resolution Practitioner is an independent third party who is specifically trained in resolving disputes relating to families, children or property matters. They cannot provide any legal advice to either party, however they can explore relevant general legal principles with the parties, provide guidance and create a safe, supportive environment, in order to help parties to reach an agreement.

Any decisions made by the Family Dispute Resolution Practitioner are not legally binding, and what happens or is said at the mediation is strictly confidential. You do, however, have the option to engage a Family Lawyer after the fact to formalise any agreement reached during FDR.

There are both public and private Family Dispute Resolution services available to utilise.

Public Family Dispute Resolution Services

Public FDR services are government-funded services, and are therefore a lower-cost option for parties to resolve their dispute. Any cost applicable is means-tested and based on parties’ income levels and capacity to pay. Public services however do often have significantly longer wait times when compared with private services.

To find a government-funded FDR service, you can use the Family Relationships Online website to find a service near you, or alternatively call the Family Relationship Advice Line on 1800 050 321.

Often public FDR has a greater focus on parenting arrangements more so than property matters and therefore may be more appropriate for matters where children are involved.

Private Family Dispute Resolution Services

Private FDR services will often incur higher costs than public services, although will still be significantly less expensive than going to Court. The cost of their service is dependent upon the provider. As noted above, private services will have significantly shorter wait periods and therefore are ideal for parties wanting a swift resolution.

To find a private Family Dispute Resolution practitioner you can search the Family Dispute Resolution Register by your postcode to find a service near you.

Private Mediation

Private mediation is another form of mediation, which is best suited to parties who may prefer for their respective lawyers to be present at the mediation. This is distinct from FDR, which does not directly involve any lawyers. At a private mediation, both parties, their selected representatives (whether they are lawyers and/or a barrister) and the mediator work together to negotiate a final agreement for parenting arrangements, and/or property matters.

Private mediations are highly effective, and in fact are very commonly ordered by the Court as part of the process, even in the event that parties do choose to litigate their matter. Many highly experienced and approachable barristers offer private mediation services, and parties engaging in private mediation have the benefit of choosing a mediator who they feel will best suit their individual matter.

Given that lawyers are involved in the process, it is a very straight-forward process to have any in principle agreement reached at mediation formalised shortly thereafter. Even in the event that matters are not completely resolved at a mediation, often private mediation will significantly narrow the issues in dispute, the remainder of which can usually be negotiated after the mediation with the assistance of your respective lawyers.

Negotiating through legal correspondence

For parties who prefer to deal with their dispute at arm’s length, and would prefer for a lawyer to engage in negotiations on their behalf with their partner or their representative, the option of negotiating through legal correspondence is available. Negotiations through legal correspondence is a good alternative resolving your family law dispute outside of Court. Through this process, offers of settlement (for both parenting and/or property matters) can be exchanged back and forth between parties until a final agreement is reached.

If an agreement can be reached through negotiations (or as noted above, during a mediation), it can be formalised in one of two ways:

Consent Orders

Consent Orders is a written agreement between the parties, which can cover parenting arrangements for children as well as any agreement for the division of assets and finances. This agreement is filed with the Court and upon approval, becomes a legally binding Court Order.

Even though neither you nor your partner need to attend Court to obtain Consent Orders, they have the same legal effect as if they had been made by a judge after a Court hearing. This means that for parenting matters, the Court must be satisfied that the orders you ask for are in the best interest of the child, and for property matters, the Court must be satisfied that the orders you seek are just and equitable.

Financial Agreements

Financial Agreements are an alternative means of formalising an agreement that deals with property division and/or spousal maintenance. This agreement is not filed with the Court therefore requires both parties to have received independent legal advice before signing in order for it to be legally binding.

An alternative option for parenting arrangements is to prepare a parenting plan. A parenting plan is a written agreement that sets out parenting arrangements for children. It is important to note, however, that a parenting plan is not a legally enforceable agreement, unlike Consent Orders. You can read more about Parenting Plans here.

How can Sharrock Pitman Legal help?

We have an Accredited Specialist in Family Law. Our team is highly skilled and experienced in negotiating resolutions for family law matters. Our team makes every effort to try and resolve your matter outside of Court, where possible, to enable you to avoid the stress and expense of litigation. If you require assistance in resolving your family law matter, please contact our 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

,

.

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.