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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

We are all free to make our Will as we wish and see fit – this is known as testamentary freedom, and is a longstanding legal principle that forms the basis of how Wills are prepared and interpreted.

However, Will Makers in Victoria have to make proper provision for persons they have an obligation to provide for. If a Will does not provide proper provision for that person, then they are entitled to request the Supreme Court of Victoria to make an order for greater provision.

These claims are often referred to as ‘Part IV Claims’, as the right to raise such a claim is contained in Part IV of the relevant legislation. They may also be referred to as ‘Testator Family Maintenance (or TFM) Claims’.

Who can make a claim for provision from an estate?

The category of people who can make a claim for provision from an estate are referred to as ‘eligible persons’. Part IV of the Administration and Probate Act 1958 (Vic) defines an eligible person. Examples of eligible persons include:

  • The spouse or domestic partner of the deceased;
  • A child of the deceased (including by adoption and step-children);
  • A former spouse or domestic partner of the deceased (who has not finalised Family Law proceedings);
  • A registered caring partner of the deceased;
  • A grandchild of the deceased;
  • A spouse or domestic partner of the deceased’s child, where that child passes away within a year of the deceased’s death; and
  • A person who was a member of the deceased’s household.

Are there any other requirements?

As well as being an eligible person, there are additional criteria that must be met, including:

  • The deceased must have had a moral duty to provide for you. This is determined in consideration of, for example:
  1. your relationship with the deceased,
  2. how you contributed to each other’s lives, and
  3. whether there was any dependency between yourself and the deceased.
  • The distribution of the deceased’s estate (pursuant to the Will or the laws of intestacy) does not provide you with adequate maintenance and support. This is determined by consideration of:
  1. your personal and financial circumstances,
  2. your anticipated future needs,
  3. the status of your health,
  4. the size and assets of the estate, and
  5. whether you are able to provide for your own maintenance and support.

Generally, you have six months from the date of the Grant of Probate to commence your application with the Supreme Court. However, if you meet the criteria as set out above, but you have missed the time frame, you can ask the Court for permission to make your application.

How do I make a Part IV Claim?

If you think you meet the above criteria, the first step is usually to obtain information about the estate and place the executor on notice that you are considering commencing a Part IV Claim. Disputes are often able to be resolved without the involvement of the Supreme Court through early negotiations conducted by legal representatives, if all parties are agreeable.

If the issues are unable to be resolved, then the claim is then commenced with the Supreme Court. If the estate is valued under $750,000.00 then the matter is heard at Judicial Mediation. We recommend seeking legal advice and representation at all stages through this process to assist with your claim.

How can Sharrock Pitman Legal assist?

If you are considering contesting your provision from an estate through a Part IV Claim, or would like further information, please feel free to call one of our team members on 1300 205 506 and we would be happy to assist.

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

,

.

Caroline Jeanne

For further information contact

Caroline Jeanne

Caroline is a Legal Practitioner at Sharrock Pitman Legal.

She is part of our Wills and Estates group and deals with Wills and Estate Planning and Probate. For further information, contact Caroline on her direct line (03) 8561 3322

More on

Wills & Estate Planning

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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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.