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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

A Court order or judgment can be obtained against individuals, corporations or other legal entities through a number of avenues, such as defended legal proceedings. During such proceedings, the court may make certain orders against you, for example:

  • ordering you to do something,
  • ordering you to cease doing something, or
  • ordering you to pay money.

Orders, usually for the payment of money, can be made 'by default', meaning that you have failed to respond to or defend Court proceedings within a specified timeframe.

Judgment for the payment of money

What happens now?

The 'judgment creditor' is entitled to enforce a judgment against you or your company, being the 'judgment debtor', to compel payment in a number of ways. They are not obliged to enforce the judgment immediately or at all. However, in most cases once a judgment for payment is made, a judgment creditor will try to enforce it promptly.

Additionally, judgments may be recorded on you or your company's credit profile, which in turn may affect your ability to obtain credit in the future.

What is enforcement?

Some of the most common enforcement options include:

  • Being summoned to Court to give evidence as to the judgment creditor's financial position,
  • Having part of your wage ‘attached’ (redirected to the judgment creditor by your employer),
  • Having monies held with a bank or owed to you by a third party 'garnished' (redirected to the judgment creditor by the bank or third party, or redirected to the judgment creditor,
  • Issue of a Bankruptcy Notice (if the judgment is against you personally) demanding payment within 21 days. If payment is not made, proceedings can be commenced to bankrupt,
  • Issue of a Creditor's Statutory Demand (for corporate judgment debtors) demanding payment within 21 days. If payment is not made, proceedings can be commenced to wind up your company, and
  • Sending the Sheriff to seize property from your home or business.

What can I do?

It is generally never too late to negotiate with the judgment creditor to try to come to a mutually satisfactory solution, which can involve the judgment being set aside. Failing which, there are limited ways in which enforcement proceedings can be opposed. For example, judgments cannot be enforced indefinitely and are subject to time limits. There may also be circumstances that warrant an application to the Court to have the underlying judgment set aside, which would halt any enforcement action currently on foot.

Another method is to apply for the judgment to be paid by instalments. Whilst the application is on foot, most enforcement actions are suspended and should the instalment order be granted, this will remain the case.

Ultimately, as long as the judgment is enforceable, the judgment debtor will be at risk of enforcement action being taken against them.

If you believe you may have a judgment against you, see here for the latest judgments issued by the Federal Court of Australia.

What now?

If you have a court order or judgment against you, you should seek legal advice as soon as possible. As Accredited Specialists in Commercial Litigation, we can help you to understand the nature of any enforcement proceedings, the effect such action will have on you or your company, and advise you on your options, both legal and practical.

Feel free to contact our litigation team on 1300 205 506, by email at litigation@sharrockpitman.com.au, or alternatively, fill in the contact form below.

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

,

.

Simon Matters

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

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.