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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

Losing a loved one is a very challenging and emotional time. If the deceased person did not leave a Will, you may be wondering where to start.

When a person passes away and leaves a Will, the Will usually states how their assets should be distributed. However, when a person passes away without a Will, they are said to have died ‘intestate’. In this situation the laws of intestacy must be followed in order to deal with the deceased’s assets (called their ‘estate’).  

What do the laws of intestacy say?

The laws of intestacy are set out in the Administration and Probate Act 1958 (Vic).

The law provides that a deceased person’s estate must be distributed to their closest next-of-kin. It also provides criteria to determine exactly who is the closest next-of-kin and sets out how the deceased’s estate must be distributed.

The most common intestacy situations are as follows:

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A domestic partner has the same rights and entitlements as a legal spouse, provided the domestic partner meets the legal definition under the Administration and Probate Act 1958 (Vic).

Under the law, it is possible to have more than one legal spouse, for example, a domestic partner while still being legally married to their previous spouse. If the deceased left multiple partners, then there are specific guidelines setting out how the estate should be distributed between those partners.  

If the deceased died without any partner, children, grandchildren, parents, siblings, or nieces and nephews, their estate will pass (in order of priority) to any surviving grandparents, then aunts and uncles, and then first cousins. If a person passes away without leaving any first cousins or closer family, then their estate will pass to the Crown.

Do I need a Grant of Letters of Administration?

A Grant of Letters of Administration is a formal document issued by the Supreme Court of Victoria. It gives authority to an Administrator to deal with the deceased’s estate.

A Grant of Letters of Administration will be needed if:

  • The deceased owned real estate in their sole name or as a tenant in common.
  • A bank or other institution in which the deceased held assets have stated that they require a Grant of Letters of Administration before they will release the assets. Each institution has its own rules and thresholds, which are often determined by the value of the asset. The higher the value of the asset, the more likely they are to require a Grant of Letters of Administration.

A Grant of Letters of Administration may not be needed if:

  • The deceased’s assets are all jointly owned. In this situation, the surviving joint holder may typically deal with the bank or other institution directly and provide the Death Certificate to have the accounts transferred solely to the surviving joint holder. This includes where the deceased owned real estate as a joint proprietor, which will involve an application by the surviving proprietor to have the deceased’s name removed from the Certificate of Title.  
  •  The value of the deceased’s assets are small and the banks and other institutions in which the deceased held assets have stated that they will not require a Grant of Letters of Administration before they will release the assets.

You can read more about Grants of Letters of Administration and whether you may need this on the Supreme Court of Victoria's website.

How do I apply for a Grant of Letters of Administration?

An application for a Grant of Letters of Administration is typically made by the person with the greatest entitlement to the estate (as set out above). The applicant is known as ‘the administrator’. The application is made to the Supreme Court of Victoria. This process is typically undertaken by a lawyer on your behalf, due to the complexities involved in managing a deceased estate.

Once a Grant of Letters of Administration is made, it can be provided to the asset holding institutions so that the deceased’s assets can be transferred to the estate. The administrator’s role is to collect all of the deceased’s assets, pay all of their debts and then distribute the assets to their closest next-of-kin (as set out above).

For more information about the procedure on obtaining a Grant, see our article What is the procedure to obtain a Grant of Representation?

How can Sharrock Pitman Legal help?

If you have recently lost a loved one, our Accredited Specialist Wills & Estates team can assist you to administer the estate and obtain a Grant of Letters of Administration if necessary. If you wish to have a Will prepared for yourself to avoid the complexities of passing away without a Will, our team can also assist you with this. Please feel free to contact us on 1300 205 506 or email sp@sharrockpitman.com.au.

Written by a member of our Legal Team

,

.

Alice Land

For further information contact

Alice Land

Alice Land is a lawyer at Sharrock Pitman Legal. She practises in our Wills and Estates, Not-for-Profit and Property Law teams. For further information, please contact Alice directly on (03) 8561 3311.

More on

Probate & Estates

Losing a loved one is a very challenging and emotional time. If the deceased person did not leave a Will, you may be wondering where to start.

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.