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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

A Power of Attorney is an important tool for enabling others to make decisions on your behalf if you are unable.

What are the different types of Powers of Attorney? Do I need them all?

There are several types of Powers of Attorney available, which operate via several different documents. Each document is designed to deal with different situations and events.

To help plan for your future as effectively as possible, we generally recommend the following documents:

Enduring Power of Attorney

An Enduring Power of Attorney covers two main areas: financial matters and personal matters.

Financial powers consist of such responsibilities as paying bills or other expenses, recovering money owed to you, signing legal and other documents, buying or selling property, and simply making money available for you when the need arises.

Powers in relation to financial matters can take effect straight away upon the making of your Enduring Power of Attorney, or you can elect that the powers only come into effect once you no longer have the ability to make decisions for yourself.

Powers relating to personal matters allow your attorney to make decisions in relation to your lifestyle, such as where you live and day-to-day living issues, like dress and diet. Unlike financial powers, we recommend powers of a personal nature should only come into effect if you are unable, by reason of permanent or long-term disability, to make reasonable judgements about your personal circumstances.

You may appoint more than one person to be your attorney for financial and personal matters. They can be appointed one at a time or jointly.

Appointment of Medical Treatment Decision Maker

Powers relating to medical matters under this Appointment include, but are not limited to, the power to give or withhold consent for treatments or surgeries, as well as decisions in relation to pharmaceuticals, dental treatment and palliative care.

Your Decision Maker(s) will be responsible for making the decision that he or she reasonably believes is the decision that you would have made if you had decision-making capacity. That is, the consideration is not 'best interest' but rather is a substituted judgement.

You may appoint more than one person as your Medical Treatment Decision Maker. However, unlike financial and personal matters, your appointed Decision Maker(s) must be appointed on a priority basis, one after the other. They cannot be appointed jointly. If a decision needs to be made in relation to your medical treatment, the decision will fall to the first person listed in your appointment who is reasonably available and willing and able to act at the particular time.

Advance Care Directive

An Advance Care Directive is a useful document, which operates in conjunction with your Appointment of Medical Treatment Decision Maker. It allows you to set out your binding instructions, or at least your preferences and values, in relation to your medical treatment should you become incapable or otherwise become unable to make your own decisions.

Advance Care Directives may contain either an instructional directive, a values directive, or both. An instructional directive is an express statement which takes effect as if you have consented to, or refused consent to, a particular medical treatment yourself. A values directive is a statement of your preferences and values as a basis on which you would like any medical treatment decision to be made on your behalf.

In circumstances where there is no instructional directive in relation to a particular medical treatment, the decision will be referred to your Medical Treatment Decision Maker.

How can Sharrock Pitman Legal help?

If you require assistance or advice regarding Powers of Attorney, please do not hesitate to contact us. Please call Mitchell Zadow on (03) 8561 3318 if you have any queries, 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

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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

Wills & Estate Planning

A Power of Attorney is an important tool for enabling others to make decisions on your behalf if you are unable.

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.