When is Probate not required?

Introduction

When a family member dies, it is often difficult to know what are the first steps in dealing with an estate.

Is Probate required?

A Grant of Representation, the most common of which is a Grant of Probate or Grant of Letters of Administration, is a legal document issued by the Supreme Court of Victoria that allows the executor or administrator to deal with the deceased's assets.

In a general sense, an executor or administrator will be required to apply to the Court for a Grant of Representation, when the deceased person held any one of the following assets in their sole name:

• An Accommodation Bond (RAD) with an aged care facility;
• Real estate that was held solely by the deceased, or as tenants in common;
• A bank account over a certain value, dependent on the policy of the asset holder or institution, but commonly around $50,000; or
• Superannuation that is payable to the estate.

Each bank, share registry and institution has their own policy which establish whether a Grant of Representation is required for the executor or administrator to access the deceased's assets. It is important to contact each applicable institution in which the deceased held assets to ascertain what is required to release the estate assets.

Jointly held assets

When assets are jointly held with another person, generally a spouse, partner or family member, the deceased's ownership rights to the asset will not form part of their estate when they die, but rather the ownership automatically passes to the surviving asset holders. In circumstances that all of the deceased's assets are jointly held with another person, a Grant of Representation will not be required to deal with the estate.

Foreign property holdings

When a deceased owns property overseas, it will depend where the assets are held whether a Reseal of Probate of the Victorian grant can be used to deal with the estate administration of the foreign assets.

How Sharrock Pitman Legal can assist?

At Sharrock Pitman Legal, our Accredited Specialist Wills & Estates team can guide both estate Administrators and Executors through the process of managing a deceased estate. Our Wills & Estates team has experience managing complex estates such as those which include business and overseas assets, trusts and blended families.

Please do not hesitate to contact our Wills & Estates team on 1300 205 506 or email willsandestates@sharrockpitman.com.au.

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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.

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