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Do you need help with Probate?

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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

The prospect of attending court can often be daunting. It helps to be prepared in the first place and to have an understanding of what to expect. Once litigation proceedings are instituted, the first appearance in court is most likely to be a “directions hearing”.

What is a Directions Hearing?

A directions hearing is usually the first step of the formal court process. A directions hearing is a brief appearance before a Judge or Registrar of the court. Typically, it will be triggered once a Defence has been filed with the court, whereby the Court will alert and notify the parties of the time and date of the directions hearing. A directions hearing will also be listed in circumstances where the parties have been unable to resolve the next steps in the dispute between themselves.

A directions hearing is scheduled to examine the direction that the matter is heading in the court and to discuss with the parties their options to resolve the matter. The purpose is to ascertain the position of each party and determine whether there is any possibility of settling any live issues.

What happens at a Directions Hearing?

At the first directions hearing, it is likely that, at the very least, the court will make orders in relation to the filing and service of pleadings.

If the matter cannot be settled, factors that are considered by the Court before making further orders are:

  • identifying the key issues in dispute;
  • considering whether alternative dispute resolution, such as mediation, is a viable option;
  • considering how evidence should be prepared, such by way of affidavit, witness statement or oral evidence;
  • leave to file and serve pleadings or evidence if the deadline for it to be filed and served has expired
  • whether a later date to hear an interlocutory dispute is to be set;
  • agreeing on a date for a further directions hearing; and
  • possibly, setting a final hearing date.

Preparing for a Directions Hearing

It helps to be thoroughly prepared for a directions hearing as the submissions made can help to clarify the issues in dispute as much as possible for the Judge or Registrar. Some of the questions asked may relate to the number of witnesses who will appear on your behalf or the requirement of expert evidence or reports to support a claim for example.

It is important to be ready to answer any questions made about the documents you have filed and to jot down notes during the directions hearing.

What happens if I cannot attend a Directions Hearing?

If there is a genuine reason for not being able to attend a directions hearing, it is possible to postpone the directions hearing to another date. Ideally, an adjournment should be sought as early as possible and prior to the directions hearing.

An adjournment can ordinarily be made in writing to the Judge’s Associate or Registrar. If possible, it is sensible to try and obtain consent of the other party to the adjournment prior to approaching the court. The Judge or Registrar will consider whether the adjournment ought to be granted and if successful, a new time and date of the directions hearing will be scheduled.

How Sharrock Pitman Legal can help?

If you are at the directions hearing stage of a proceeding and you would like to discuss any prospective court orders or seek guidance on what to expect, you may wish to have a lawyer advise you on your legal position.

At Sharrock Pitman Legal, our Litigation team provides considered, realistic advice and is experienced in steering matters through Courts and Tribunals. If we can assist you please contact us by email litigation@sharrockpitman.com.au or call 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 a member of our Legal Team

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For further information contact

Caroline Callegari

Caroline Callegari is Special Counsel in our Commercial Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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The prospect of attending court can often be daunting. It helps to be prepared in the first place and to have an understanding of what to expect. Once litigation proceedings are instituted, the first appearance in court is most likely to be a “directions hearing”.

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

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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.