Probate

The death of a family member or loved one is an emotional and difficult experience for most people. Not only is it a time of grieving and reflecting on your time with a loved one, it is also a time where numerous legal and personal decisions need to be made.

Our aim is to help guide an executor in making these decisions, providing them with advice and support in managing an estate and striving to make the process as straightforward and as stress-free as possible.

Grants of Probate or Administration

Following an initial consultation with one of our estate lawyers, we will be able to assess whether or not a Grant of Representation is necessary to execute the terms of the Will. If a Grant is required, our lawyers can coordinate and manage the entire probate process for you and assist you in managing the administration of the estate.

When somebody dies, their assets become part of their ‘estate’. To pass those assets to the beneficiaries, a person usually needs to be appointed to manage the assets, sell assets to pay the deceased person’s debt or funeral expenses, and transfer the remaining assets to the persons who are entitled to them.

This usually requires an application to the Supreme Court of Victoria to obtain a Grant of Representation to administer the estate. There are two basic types of Grants:

• A Grant of Probate - where the deceased has made a valid will that appoints an executor;
• A Grant of Letters of Administration - where the deceased didn’t make a Will, or their Will doesn’t appoint an executor who is able to act. In this case, the Court will appoint an administrator to manage the estate.

The reason a grant is required is to prove that the Will is valid, or if there is no Will, that the administrator is legally authorised to deal with the estate. In this way, a grant protects the person who is acting, and protects anybody who now has control of the deceased person’s assets.

Applications can be complex, particularly if there are any questions about the validity of the Will, a Willmakers testamentary capacity when making the Will or disputes among executors or family members. Aitken Partners is a leading and experienced Wills & Estates practice in Victoria and has successfully assisted thousands of clients with the application and administration of a loved ones estate. Our team is familiar with the Victorian procedures and has encountered most complexities at some point administering an estate.

The distribution of an estate is affected by whether or not the deceased left a Will. If they did, the terms of the Will are legally binding on the executor. If there is no Will, the estate is distributed according to the law of ‘intestacy’, which in Victoria means that:

1. If the deceased left a spouse, the spouse is entitled to:
1. The deceased’s personal effects.
2. 100% of the estate, if there are no children or only children of the spouse and the deceased.
3. If any of the deceased’s children are not also the spouse’s children, the spouse receives $451,909 plus one half of the remainder of the estate, with the rest being divided between all of the deceased’s children in equal shares.
2. If there is no spouse, the first group named in the list are entitled to the whole estate:
1. Children and descendants.
2. Parents.
3. Siblings and their descendants.
4. Grandparents.
5. Aunts, uncles, and their descendants.
6. The Victorian Government.

Once a grant is obtained, it is the job of the executor or administrator to:

1. Pay any debts, including the funeral.
2. Call in or sell the estate assets.
3. Invest the money or proceeds of sale.
4. Prepare accounts and comply with tax obligations.
5. Distribute the assets.

If an executor or administrator does not perform their job correctly, they can be personally liable to repay the estate any loss they incur. If the estate is distributed too early or not in accordance with the Will or laws of intestacy, the executor or administrator may be left with the financial liability, and having to reimburse the estate from their own pocket.

Complying with the laws and obligations applying to deceased estates can be overwhelming. It is important for the estate to be administered as the deceased would have wanted and to protect the beneficiaries’ inheritance from being wasted.

Aitken Partners can help advise you and guide you through the administration of the estate, and ensure that every step is followed along the way.

If you require assistance or guidance relating to any of the points below, please contact our office to speak to a member of our team:

• What to do when a family member passes away.
• Getting a grant of probate or letters of administration.
• How to get a grant where the Will is not signed correctly, is lost, or its validity is disputed.
• Selling and distributing assets.
• Paying or disputing debts.
• Paying tax for the estate.
• Your rights, duties and obligations as an executor, administrator, or beneficiary.
• Defending the estate from potential legal proceedings.

Get in touch

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