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Deceased Estates

What do I need to do if I’ve been appointed as an executor of a Will or if my loved one didn’t have a valid Will or the Will can’t be found?

There are many obligations and requirements placed upon an executor.  You will need to determine whether a Grant of Probate is required and if so, make an application to the Supreme Court.  If you are the deceased’s next-of-kin and all executors named in the Will have predeceased, then you and your family will need to decide which of you will apply to be Administrator of the Estate.  Once this has been done, the Estate will need to be administered and a distribution made to the beneficiaries.  We appreciate that all this can be extremely daunting at a time of mourning but with our assistance, can take the strain out of the process.

There are so many questions…..

Is there a valid Will?
Is Probate needed?
Was there a Will?
Is there disagreement between yourself and other family members?
Are assets jointly owned with a surviving spouse or partner?
What do I do?

The most important thing to do is to address things as early as possible.  Putting it off can be precarious and may cause additional fees, expenses and headaches down the track.  We understand that there are so many questions and things to deal with when it comes to the passing of loved ones.  We know that it can be daunting to deal with an estate during a time of mourning and we would like to help and take some on some of the burden.

Probate – Where a valid Will exists, the executor(s) named in the Will are required to make an application to the Registrar of Probates at the Supreme Court of Victoria (the Registrar) for a ‘Grant of Probate’.   Not all executors are required to make the application, one may do so on behalf of the others.  Probate is mandatory when dealing certain assets, in particular Victorian Real Estate.    Probate may also be required where no real Estate holdings exist, if the size of the assets warrant its provision (eg. Accommodation bonds, large value accounts).  We can determine whether such an application is required during our initial discussion with you.  If the Estate holds assets outside Victoria, then a ‘re-seal’ may be required in that jurisdiction.

No Will or the original Will can’t be found or is no longer valid? – Sometimes our loved one will have made out a Valid Will but the original Will cannot be found or for some reason the Will is no longer valid (ie. all executors have predeceased).   Although it is preferable to have an original valid Will, a photocopy or invalid original Will can still be used to apply for administration of your loved one’s estate.  This is called Letters of Administration with Will annexed.  This simply means that your loved one’s wishes will as contained in the Will can still be considered in the administration of the estate.  If there is no Will at all, it is usual for a loved one to apply to the Registrar for letters of administration.  In this case, the estate is distributed according to law.  As each situation is different, we will sit down with you and explain everything to you when we first meet.

Court Ordered Administration – If no Will exists, or the Will was not a valid Will for the purposes of the Act, then it is usual for a family member to apply to the Registrar of Probates to become administrator of the estate.  This is called an application for ‘Letters of Administration’.  If there are no immediate family members or no-one willing or able to act as administrator, the Court can appoint and administrator (ie. State Trustees) as administrator of the estate.  There are usually costs involved in this type of administration.

Providing Instructions – An initial meeting is required with you so we may obtain an understanding of the Estate’s asset holdings and thus provide you with advice as to any applications required to be made to the Supreme Court or otherwise.  We will ask you for a copy of your photo ID at this point and if you have been provided with it, the original death certificate and original Will.  The death certificate will be returned to you once we have made certified copies, however the Supreme Court of Victoria will keep the original Will with the application for Probate/Letters of Administration.

Funeral Expenses – Funeral or burial services may be claimed directly from the deceased’s bank account by taking the invoices to the deceased’s bank.  A grant of probate is not required to do this, although the bank will likely ask to see either the Death Certificate or a confirmation from the funeral home of the deceased’s death.  You need to note however, that once these have been presented for payment, the bank will likely freeze all accounts in the sole name of the deceased.

Joint Assets – If the deceased jointly owned property (a home, bank account, or other assets) with their spouse or partner, their share in the property can be transferred to the surviving spouse/partner upon their death.  In respect to jointly owned real Estate held as ‘joint tenants’, a Grant of Probate will not be required but a survivorship application will need to be made to Land Victoria and the original Death Certificate will need to be provided to us.

Administration of the Estate – Once the Grant of Probate or Letters of Administration have been obtained, we can then attend to the administration of the Estate on your behalf.  This includes working with you to collect the assets of the Estate, pay any outstanding liabilities, deal with any third parties and beneficiaries.  Should alternative arrangements be made between the beneficiaries regarding distribution, we will attend to the necessary deeds to effect same.  Once the administration is complete, we will provide a detailed accounting of the Estate.

Our Fees and Disbursements – As each matter is different, we are unable to provide ‘fixed fees’ for an application for Probate/Letters of Administration.  A written quote will be provided once we have met with you and taken initial instructions.   This written quote (cost agreement) sets out our estimated fees and an estimate of any out-of-pocket expenses (disbursements) which we will ask be reimbursed.  All fees in respect to the Grant of Probate/Letters of Administration and administration of the Estate are payable by the Estate, not the executors personally.  We may however ask the executors to provide us with a small retainer in trust on account of disbursements until the funds of the Estate have been redeemed.   This is determined on a case-by-case basis.  This retainer will be reimbursed to the executor from estate funds upon distribution of the Estate.