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Probate & Deceased Estates
We deal extensively with simple and complex deceased estates including:
- grants of probate,
- letters of administration where there is no will,
- letters of administration with the will annexed where there is a will but the appointed exectutor is unable or unwilling to act,
- administration and distribution of deceased estates, and
- resealing of interstate and overseas grants of probate in Victoria.
- disputes and contesting wills and estates.
Contact us to arrange a consultation.
PROBATE FREQUENTLY ASKED QUESTIONS
What is probate?
When a person dies leaving a will, a grant of probate must usually be obtained from the Registrar of Probates in the Supreme Court.
A will is a legal document setting out how the estate is to be distributed and appointing one or more executors to distribute the estate.
A grant of probate is a court order confirming that the will is the deceased’s last valid will in existence.
Finding the will
Often members of the deceased’s family do not know whether the deceased left a will or, if so, where it can be found. If the will is not with the deceased’s personal papers, checks should be made with the deceased’s bank, lawyer and accountant. The executor is entitled to the original will and is not bound by any direction in the will appointing a particular lawyer or firm to act for the estate. A lawyer appointed by the executor can assist in obtaining the original will.
What if there is no will?
If a person dies without a will, the estate will be distributed according to a formula set out in legislation. An application for letters of administration must usually be made to the Registrar of Probates in the Supreme Court. This application is usually made by the person who has the greatest claim to the estate, who becomes the administrator of the estate once an order has been made.
Is a grant of probate or letters of administration always necessary?
If all of a couple's assets are in joint names, a grant of probate may not be necessary if one of them dies. There are other circumstances where a grant of probate may not be necessary, for example, if the only asset is a small bank account. A lawyer can advise whether a grant must be obtained and attend to transferring jointly held real estate and other assets into the name of the surviving spouse, if applicable.
Can the funeral bill be paid before probate is obtained?
Most banks will allow the executor to pay the funeral bill from a bank account of the deceased before a grant of probate has been obtained.
Are there any death duties or other taxes?
Death duties were abolished in Victoria 1984. The estate will be liable to pay income tax on the deceased’s income up to the date of death and on any income earned after the date of death by the estate.
Capital gains tax is not attracted merely because of the death but may be payable if the estate or a beneficiary subsequently sells an asset at a profit. Capital gains tax does not usually apply to the sale of the deceased’s main residence by the estate if certain time limits and conditions are met. The law relating to capital gains tax is very complex and subject to change and advice should always be sought.
What is the effect of a court grant?
A grant of probate or letters of administration enables the executor or administrator to collect and deal with the assets of the estate, including selling or transferring any real estate of the deceased, access to bank accounts and investments of the deceased and the collection, administration and distribution of the deceased’s other assets.
What is the role of the executor or administrator?
The role of the executor or administrator is to deal with the estate of the deceased after death. Duties of the executor or administrator include:
- Making funeral arrangements.
- Determing the extent of the estate and taking control of the assets of the estate.
- Keeping property insured until sale or distribution.
- Advising financial institutions and other relevant organisations, including Centrelink and any pension fund, of the deceased’s death.
- Obtaining a grant of probate or letters of administration.
- Acting impartially and in the best interest of all beneficiaries.
- Dealing with all estate liabilities and disputes. This can involve waiting for the expiration of the six month period after the grant of probate during which claims against the estate can be commenced.
- Arranging for tax returns and payment of any tax liability.
- Distributing the assets of the estate or the proceeds of sale of the assets to the beneficiaries.
- Investing funds or managing the assets of the estate on behalf of the beneficiaries until the estate is fully distributed.
What are the rights of the beneficiaries?
Beneficiaries who have been left a share in the balance of the estate, after specific gifts have been made, are entitled to a copy of the will and a statement of assets and liabilities of the estate, and inspection of certain records and assets.
When can a will be contested?
A will may be open to challenge if the deceased was incapable of making a will, the meaning of the will is unclear, the will was incorrectly executed or was tampered with or the will was executed under pressure from others.
A will can also be challenged if insufficient provision has been made in the will for a spouse, children or other people the deceased had an obligation to provide for, as set out in the laws relating to Testator’s Family Maintenance. Applicants need not be related to the deceased. Testator’s Family Maintenance applications must be made within six months of the grant of probate.
Legal advice should always be sought if a challenge to the will is made or anticipated.
What is executor’s commission?
An executor is entitled to claim all costs and expenses incurred in administering the estate. An executor can also apply to the Supreme Court for executor’s commission or may be paid commission if all of the beneficiaries are adult and agree on the amount of commission to be paid.
The usual rate of commission allowed by the Court is between 2% and 3% of the value of the estate, up to a maximum of 5% if the estate is very complex and time consuming. It is not compulsory to claim commission.
Can a power of attorney still be used?
A power of attorney of the deceased becomes invalid upon death and should not be used after death.
What is the role of a lawyer?
Acting as executor or administrator is usually a complex and time consuming process and legal advice should be obtained. The executor’s or administrator’s duties may be made more difficult by grief and loss or sometimes by family tensions relating to the estate. If the executor’s or administrator’s duties are not carried out properly, the executor or administrator may be exposed to the risk of a claim against him or her.
A lawyer can assist the executor or administrator in carrying his or her duties, including obtaining a grant of probate or letters of administration and dealing with the administration of the estate.
Please note: The contents of this website are not intended to act as a substitute for legal advice. Legal advice should always be sought before action is taken based on any of the matters described in this website.
Contact us to arrange a consultation.
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