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

Are "do it yourself" Wills legal? Yes, but using a DIY Will kit comes with its own risks of which you must be aware.

Problems with 'do it yourself' Wills

1. It can be more costly to prove a DIY Will to the court. When a Will maker passes away, the executor/s will have to make an application for a court order to confirm the validity of the will, which is called an application for a Grant of Probate. If a will has not been drafted or executed in the manner required by the law, executors may have to incur additional legal costs in attempting to prove the will and potentially making a court application for it to be recognised as an "informal Will". This expense will be borne by the estate, which ultimately reduces what the beneficiaries would have received from the estate.

2. DIY Wills can be unclear and may not record the Will maker's intention accurately. Changes in Wills that are ambiguous will make it difficult for the executor to understand the Will maker's intention. Gifts may also fail if not identified with sufficient precision. This may cause uncertainties in distribution.

3. DIY Wills may not cover all of your assets. Listing all of your assets in a DIY Will does not necessarily mean that your executors can distribute them. In fact, assets such as jointly owned properties, superannuation, life insurance policies and assets owned by family trusts do not automatically form part of your estate. They need to be planned differently for beneficiaries to receive them successfully.

4. You may have special needs that are not provided by a DIY Will. In some circumstances, a trust may need to be established to hold the assets for your minor child/ren or beneficiaries with any disability. Trusts are also beneficial to avoid paying unnecessary tax (which might be substantial). In other circumstances, you may want to provide some flexibility to your executors in management of your assets, such as allowing them to make investments. These specific clauses are not generally provided in a DIY Will.

5. DIY Wills can be more vulnerable to a potential challenge by a disappointed family member. The Administration and Probate Act allows eligible persons (such as a child, former spouse and de facto partners) to make a claim against your estate. There are strategies that can be implemented both in and alongside a properly drawn will that can assist in defending potential claims. These strategies will not be countenanced by a DIY Will.

How to Make Your Will Incontestable

A Will maker (also known as a testator) is always advised to consult with an experienced lawyer before making a Will in order to ensure the best protection for their beneficiaries.

Lawyers can ensure that your will is drafted and executed to be compliant with legal requirements, so avoiding executors incurring extra legal costs in the course of making an application for Grant of Probate.

More importantly, lawyers can also help to minimise the risks of your will being contested (such as drafting a certificate of capacity and/or a statutory declaration to accompany your Will). This should save your executors facing litigation down the track.

Overall, DIY Wills are cheap, but it is not the best idea to save costs on making a Will and then your estate incurring extra costs (likely to be much more substantial) after your death. The potential loss and expenses caused by a defective Will can be significant. Ultimately, the priority of any Will maker is to ensure that their estate is passed on effectively to the next generation and in accordance with their wishes. An experienced lawyer can provide you the peace of mind and work with you to achieve your desired outcomes.

For further assistance, please feel free to contact Mitchell Zadow on (03) 8561 3318.

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

,

.

Andre Ong

For further information contact

Caroline Jeanne

She is part of our ? team and deals with ?. For further information,contact Caroline on her direct line (03) 8561 3322

More on

Wills & Estate Planning

Are "do it yourself" Wills legal? Yes, but using a DIY Will kit comes with its own risks of which you must be aware.

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.