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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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

If you have been handed or posted a court document, you may have been "served"!

1. What does it mean if you've been served?

If you have been served with a court document, this means that a party (known as the Plaintiff or Applicant) has commenced legal proceedings against you or your company (known as the Defendant or Respondent).

The legal proceedings will have been commenced for a particular purpose; for example, seeking payment of an outstanding debt or compensation for a loss the Plaintiff claims to have suffered because of you.

In most cases the Plaintiff will be seeking an order from the Court that you comply with their request; for example, an order that you pay the Plaintiff money. The documents will detail what the Plaintiff is seeking from the Court.

The type of document you are served with will depend on the Court or Tribunal where the proceedings are to be heard and or the nature of the proceedings. Whether you are served with a Complaint, Claim, Writ, or other document, they all indicate that proceedings have been commenced and that you will need to do something about it.

2. What should you look out for?

Deadlines!! With any legal proceeding, there are always very strict time deadlines which will often begin to run from the date you are served. It is therefore very important to note the date that you received the document.

If you want to dispute the claim, an important deadline of which to be aware are the number of days you have to file and serve a defence (or response).

If you intend to engage a lawyer to assist you with this, the lawyer will need sufficient time to review your matter and prepare a defence or a response and so you should seek legal advice as soon as possible once you have been served in order to meet a deadline.

The second important date to note is any hearing date. This date usually appears on documents in the following form:

"This application will be heard at 9.30am on 30 March 2019 at the Melbourne Magistrates' Court".

In addition, you should ensure that you read the document carefully to make sure you have a clear understanding of what the Plaintiff's case is and what they are seeking from the Court or Tribunal.

This will assist you in considering how you ought to deal with the matter; for example, whether it can or should be resolved without extensive and expensive court proceedings.

3. What happens if you do nothing?

If you do not respond within the time frame specified, the Plaintiff will generally be entitled to apply to the Court or Tribunal for a 'Default Order'; for example, an order in default of a Defence. A Default Order can then be enforced by the Plaintiff through various methods such as bankruptcy proceedings or a warrant to seize personal property. Default Orders will also be recorded on your credit profile.

If a hearing date has been allocated, you will be expected to attend the Court or Tribunal on that day. If you fail to attend, the matter may be dealt with and the Court may make a determination in your absence.

See our previous article, "I have a Court Hearing: What do I do?" for more information about what to expect when attending a court or tribunal hearing.

Alternatively, refer to the website of the court or tribunal to find detail of your case (if listed) and the date and time of any listed hearing.

4. What do I do now?

If you have been served, you should get legal advice as soon as possible. You will need to decide whether you wish to dispute the case being brought against you or whether there are more practical and cost-effective solutions available, such as Mediation.

How can Sharrock Pitman Legal assist me?

At Sharrock Pitman Legal, we can help you to understand what your legal proceedings are about. Our team of litigation lawyers, led by Accredited Commercial Litigation Specialist Simon Matters, will be happy to assist and advise you on the strengths and weaknesses of your legal position, in addition to advice about the future conduct and strategy of the matter. Please call on (03) 8561 3324 or alternatively fill in the 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

,

.

Rhiannon Carpenter

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]

If you have been handed or posted a court document, you may have been "served"!

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'. 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 a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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.