COVID-19 - Updates, Webinars and Resources

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

In theory, upon your death you can leave your estate to anyone. However, with this power comes responsibility. The law may intervene if you fail to adequately provide for a person to whom you owe a moral and financial duty. This intervention can come in the form of a challenge to your Will under Part IV of the Administration and Probate Act 1958 (Vic) (often called a "Part IV" or "family provision" claim).

Spouses and children are at one end of the spectrum of potential challengers to a Will. It is uncontroversial that they should not be put out on the street after your death. When we talk about protecting an estate from challenge, it is not these people that we are talking about. At the other end of the challenge spectrum are estranged adult children, more distant relatives and that very nice neighbour who sometimes helps with your lawn. These are the people that you may legitimately wish to protect your estate from a legal challenge.

Who can actually challenge a Will?

The good news is that recent changes to the law have effectively halted the more obscure and opportunistic challenges. The nice neighbour is definitely out of the picture, as are most of the extended relatives.

Section 90 of the Act now contains a prescriptive list of who is eligible to challenge a Will. This list includes spouses, domestic partners, children, step-children, and other persons who are actually dependant on the deceased.

By far the most common challenger is a disappointed child or step-child.

Strategies to protect an estate

Here are some common strategies to protect your estate from challenges and ensure that it reaches the hands of those who need it most:

Trusts

Your 'estate' only comprises those assets which are actually yours. Accordingly, assets which are held in a trust generally do not form part of your estate and are therefore not available to any estate challenges.

Control of the Trust and Trustee are therefore very important and the Trust Deed must be reviewed to understand who will receive practical control of the trust upon death.

Superannuation

Superannuation benefits are not treated as part of your estate, as they are, effectively, a type of trust (unless the superannuation fund pays benefits directly to your estate). Rather, the money in your superannuation fund is paid directly from the fund to a nominated beneficiary by making a Death Benefit Nomination.

When making a Death Benefit Nomination in your superannuation fund, it is important to note the distinction between Binding Death Benefit Nominations and Non-Binding Death Benefit Nominations. Under a Binding Death Benefit Nomination the trustee of the superannuation fund is bound to follow the nomination. Conversely, the trustee of a superannuation fund with a Non-Binding Death Benefit Nomination retains discretion as to when the death benefits should be paid. For obvious reasons, it would be prudent to ensure your Death Benefit Nomination is a binding one so as to ensure your wishes are carried out.

In the case of Self-Managed Superannuation Funds (SMSF), there is no standard form to complete. Accordingly, you would need to draft a Binding Death Benefit Nomination to suit your particular needs.

Joint ownership

Assets which are owned jointly will, generally speaking, automatically pass to the other joint owner on death and will not form part of your estate. For example, bank accounts jointly held in the names of both spouses will automatically pass to the remaining account holder upon the death of the other account holder.

For property in particular, there are different types of joint ownership and so this may not always be the case.

Properly drawn Will

It is often inevitable that at least part of your wealth will be in your own name and therefore constitute your estate. Even though the potential for challenge exists for these assets, a properly drawn Will still goes a long way to defending a potential claim.

Often such a Will would be supported by a formal statement or statutory declaration setting out the reasons for omitting a person. Section 91A of the Administration and Probate Act 1958 specifically directs the Court to consider such reasons when determining a claim.

Be fair

Omitting someone from a Will or reducing their provision is a serious decision. It should not be made on impulse because of a temporary falling out. Six months of bad blood should not override a positive, 50 year relationship.

Carefully considering certain obligations to someone, especially to dependants, will ensure that there are few grounds to challenge your estate.

How can Sharrock Pitman Legal help?

Our team have extensive experience in estate planning. If you need help or have any questions, please do not hesitate to get in touch with our accredited specialist Wills and Estates team on 1300 205 506.

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

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Probate & Estates

In theory, upon your death you can leave your estate to anyone. However, with this power comes responsibility. The law may intervene if you fail to adequately provide for a person to whom you owe a moral and financial duty. This intervention can come in the form of a challenge to your Will under Part IV of the Administration and Probate Act 1958 (Vic) (often called a "Part IV" or "family provision" claim).

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

Download our FREE handbook "Managing the Dismissal of an Employee"

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.

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

Could your Not for Profit organisation do with a "health check"?

Fill in our survey about the legal health of your organisation 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.