The information contained in this article is current as at 16 April 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.

The coronavirus pandemic has meant the enforcement of social distancing and self-isolation in order to reduce the spread of the virus. This also involves the closure of various services and the implementation of new social distancing requirements when leaving the house. As a result of these restrictions, it would seem that the need for Powers of Attorney has become increasingly important to assist in circumventing some of these difficulties, particularly for those in isolation who are unable to leave their home. Nominating a friend or family member to act on your behalf if you become ill or are unable to leave the house can provide you with peace of mind during these uncertain times, especially if you are within a high risk category.

Powers of Attorney are usually made in two separate documents. The Enduring Power of Attorney allows you to nominate a person to make decisions on your behalf in relation to financial and/or personal matters. The Enduring Power of Attorney can specify whether the powers granted to the attorney should be active whilst you still have capacity, for example enabling a friend or relative to attend the post office or bank on your behalf, or only if you have lost decision making ability. The second document is the Appointment of Medical Treatment Decision Maker, which enables you to nominate an individual to make medical treatment decisions for you in the event that you lose capacity.

Witnessing requirements during COVID-19

In Victoria, you are required to have two witnesses who are over the age of 18 to witness and sign the document, with one of these witnesses being an authorised witness (such as a lawyer or medical practitioner). Currently, these documents cannot be witnessed via Skype, FaceTime, Zoom or any other similar platform, as they do not meet the signing requirements ‘in the presence of’, which is required for witnessing the document.

A COVID-19 Legislation Amendment (Emergency Measures) Act 2020 has been passed by the NSW Parliament in response to the COVID-19 Pandemic. This Act will allow regulations that alter arrangements in relation to signing and witnessing documents, as well as verifying identity. There is the expectation that a similar Act may come forward in Victoria which may override regulations in certain circumstances and prescribe different arrangements for the signature and witnessing of documents. We will be sure to keep you informed and updated if such Bill is introduced and enacted in Victoria.

For now however, these document must be signed in the presence of a qualified lawyer or other prescribed witness.

How can Sharrock Pitman Legal assist?

If you have any further queries regarding Powers of Attorney please feel free to get in touch. Call our accredited specialist Wills and Estates team on 1300 205 506 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

For further information contact

Dan Saunders

Dan is a Legal Practitioner at Sharrock Pitman Legal.

He deals with areas of Charities & Not for Profit Law and Commercial Law. For further information, contact Dan on his direct line (03) 8561 3325.

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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.

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

Powers of Attorney and COVID-19

Witnessing requirements during COVID-19