Probate & Administration

Frequently Asked Questions

“My loved one just passed away. I know he had a Will, what should I do?”

The death of a loved one can bring sorrow and pain, and having to handle their assets immediately after they pass can be a difficult thing to do. That is where estate lawyers enter the picture – to do the job for you while you take time to grieve.

What is Probate and who can apply for a Grant of Probate?

When a person dies, someone has to deal with their estate (the property, assets and liabilities left behind). When a deceased has made a Will, the person who deals with the estate is usually called the Executor.

Probate refers to the legal process by which a Will is “proved” by the Supreme Court as the last Will of the deceased person. It formalises the Executor’s authority to act in accordance with the instructions of the Will.

The Executor(s) named in the Will apply to the Supreme Court of Victoria for a Grant of Probate. Most Executors engage a lawyer to assist in the process.

What if there is no Will?

If a person dies without a valid Will, then “Letters of Administration” need to be obtained from the Supreme Court, instead of Probate. Instead of an Executor, the next of kin or someone with an interest in the Estate will usually be appointed as the Administrator, to administer the deceased estate. Once Letters of Administration are granted, the process is very similar to when there is a Will, and the terms “Probate” and “Letters of Administration” frequently refer to the same requirements.

If there is no valid Will, the assets of the deceased will be distributed pursuant to formula known as “intestacy”. This prescribes a cascading list of family members and relatives who will inherit. Ultimately, if there are no surviving beneficiaries, the estate will pass to the government.

Why is Probate necessary?

Real estate and large bank accounts, shares and some other assets cannot be dealt with unless the Executor produces a Grant of Probate from the Court. It gives the Executor the right to deal with the assets, after satisfying the Court that the deceased’s Will is authentic, and the Executor has been identified.

Probate Application

There are a series of steps required in the Probate application, including advertising the Executor’s intention to apply, submitting the deceased’s death certificate, Will and an inventory of the deceased’s assets at the date of death. As this is a court proceeding, an affidavit is also required to be submitted. This is a legal document consisting of written evidence to support the application.

What is the role of an Executor?

The primary role of the Executor is to execute the wishes of the deceased as recorded in the Will. The Executor’s role is a serious and important one and is not to be taken lightly. The Executor needs to finalise all the personal, financial and legal matters of the deceased. For example, the Executor has to ensure that all debts and liabilities are paid, and any assets are well maintained until sold or transferred. The Executor is required to act in accordance with the best interest of the beneficiaries.

Do I need a lawyer?

There is no legal requirement to use a solicitor to apply for probate or to administer an estate. However, given the significance of the responsibility and the personal risks to the Executor, most Executors have a lawyer assist them. The reasonable costs of legal advice are payable from the Estate.

How much does it cost for Probate Application?

A lawyer can be hired to simply assist with the application for Probate or to also administer the estate. As such, the costs vary depending upon the complexity of the estate. Court filing fees are also calculated according to the value of the estate. Once we know the details of the estate and the steps involved, we can quickly calculate what will be required.

We always provide an estimate of total costs prior to taking any steps, to give the Executor certainty and peace of mind.

Are you an Executor of an estate? Call us today to arrange a consultation with one of our experienced estate lawyers to help you along this journey.

Do I need a Grant of Probate if the deceased’s assets are low in value?

Not necessarily. For assets under $50,000 (other than Real Property i.e Houses and Land) organisations may accept a certified copy of the Death Certificate and Will.

How does the Executor pay for the funeral?

Banks will pay the funeral invoice from the deceased’s bank accounts and sometimes other accounts as well.

If the Executor pays for the deceased’s bills before Probate is granted, will he or she be reimbursed?

Yes. Estate expenses are always paid or reimbursed from the deceased’s estate.

What happens if the deceased had debts and not enough assets to repay them?

This is called an insolvent estate and a Trustee in Bankruptcy may need to be appointed to apportion the debts from available funds.

If I am left a property with a mortgage, do I inherit the mortgage?

If the deceased did not stipulate that the mortgage was to be paid from estate funds, and in the absence of the consent of the other beneficiaries to pay it, the new owner would need to take over the mortgage or sell the property.

How do the deceased’s belongings get distributed?

If there is a clause in the Will about the deceased’s “chattels” (i.e. personal effects, furniture, jewellery, paintings and vehicles) then this clause will determine who receives what chattels. If there is no such clause then the chattels form part of the residuary (rest) of the estate, to be sold (in the absence of agreement) and divided in accordance with Will.

Can the Executor do something different from what is in the Will?

The only way he or she can do this is if all of the beneficiaries agree, or if there is a Court Order which directs a different result from that contained in the Will.

Questions? Ask our Deceased Estates Law team.

Jason Lau
Partner
Commercial
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Estate Planning
Accredited Specialist in Wills & Estates Law
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Madelaine Pelser
Partner
Deceased Estates
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Eldercare
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Annabel Tee
Lawyer
Estate Planning
,
Deceased Estates
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Mandarin
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03 9870 9870