COVID-19 - Updates and Resources

Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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

Shared parenting can be difficult at the best of times, when adding in the stress and uncertainty of the current COVID-19 situation, it is easy to feel completely overwhelmed. We have prepared a guide below for separated parents to alleviate the stress and uncertainty of parenting during the coronavirus pandemic.

The most important factor throughout these difficult times is to continue to focus on the best interests of your children. With all the disruptions to their regular life it is important to retain as much consistency with parenting as possible, where it is safe to do so.

If you have Court Orders, a Parenting Plan, or just a verbal agreement as to the care arrangements of your children, these should continue to be followed, where it remains possible.

Stage 3 Restrictions: How do these restrictions apply to our care arrangements?

In Victoria, during the present Stage 3 restrictions, complying with the care arrangements for children falls into the second exemption category, “medical, care and compassionate needs”, allowing you to leave your home to effect the care plan and change over. Children are also considered to reside in the home of each parent and thus are allowed to move between residences.

As playgrounds, parks, and venues such as contact centres, play centres and swimming pools are now closed, there may need to be temporary alterations made for changeover and for spend time arrangements that were to take place in such locations. Some private supervisors will be able to undertake home assessments so that there is no interruption to the continuity of time spent with each parent, however, given the number of families requiring this service there may be a delay in access. It may be more practical and financially viable to have a trusted family member facilitate changeovers or supervision where required. Of course, the safety of the children must come first and it may be impractical to continue with face to face time until the Stage 3 restrictions are lifted.

Interstate parenting

Where one parent resides interstate, it will be important to check with the specific state or territory government with respect to their border closures and the impact this will have on complying with changeover needs. Some states may allow the travel, however will then require the child to meet their quarantine requirements, which could significantly impact the return of the child within regular timeframes.  

Altering Court Orders or Parenting Plans

Parents naturally want to protect their children, and it may be that in order to limit any exposure to the coronavirus that families reach an agreement for the children to remain with the resident parent or primary carer on a temporary basis and communicate with the other parent via electronic means. If you do reach an agreement to alter Court Orders or a Parenting Plan, it is important to have it in writing, whether by email or text, so that there is evidence of the change and the temporary nature of it, if required at a later date.

There are mediation options available electronically to help facilitate changes, or alternatively you may engage a lawyer to negotiate new arrangements for the duration of the restrictions.

In some instances it may be unsafe or simply not possible to discuss a change to current care arrangements with the other parent. Where you hold significant concerns for the safety of your child due to the risk of exposure to a vulnerable high risk member of your household, or where you are aware that the other parent is placing the children at risk by failing to comply with social distancing requirements, you should seek legal advice as to whether it is appropriate to make an application to the Family Courts to temporarily suspend the time the children spend with the other parent.

How can we assist?

If you have any further queries, please do not hesitate to contact us on 1300 205 506 or by email at family@sharrockpitman.com.au. As Accredited Family Law Specialists, we are well equipped to advise you of your options should you have any concerns regarding your parenting arrangements or the impact of the coronavirus pandemic.

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

,

.

Katharine Layne

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 a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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

Download our FREE legal guide to Probates & Estates in Australia

GET YOUR FREE DOWNLOAD

Enter your details

Thanks for your interest! 

Here's your download:
DOWNLOAD PDF
Oops! Something went wrong while submitting the form.

Could your business do with a “health check”?

Fill in our survey about the legal health of your business and get 30 minutes FREE legal advice!

FILL OUT SURVEY NOW

About Sharrock Pitman Legal

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.