How to respond to identity theft

Any cursory search of ‘identity theft help’ will give you hundreds of results on how to avoid and protect yourself from identity theft. This does not, however, tell you how to respond to, and deal with, the ongoing effects and consequences of identity theft.

The difficulty in providing an accurate guide for identity theft victims is, in part, because of the many forms that identity theft can take, and the resulting need for a tailored response to each case.

In many cases, there is little that a lawyer can do for a victim of identity theft. The appropriate response will depend on the circumstances of your case, and that response often does not require a lawyer.

The following steps provide a brief guide for responding to, and recovering from, identity theft.

4 steps to take if you believe you are a victim of identity theft

Preliminary steps to take once you realise your identity has been stolen are:

1. Contact the relevant authorities and report it

Identity theft involving cybercrime should be reported to the Australian Cybercrime Online Reporting Network (ACORN). This is a government initiative created to deal with cybercrime, and a report made to ACORN may then be referred to the police for investigation.

You could also report the theft to the police yourself. They may then investigate the crime and charge the perpetrator with a financial information offence.

If the offender is charged and convicted, you could make an application under Section 86 of the Sentencing Act 1991 for an order requiring that the offender compensate you for your loss. The relevant prosecutor could also make the application on your behalf, although they are not required to do so.

However, there is no guarantee that the Court will make the order sought. If your matter proceeds to this stage, you should seek legal advice regarding making an application and court processes.

2. Contact your financial institution(s) and bring the issue to their attention

Your financial institution may be able to dispute charges that are a result of fraud or identity theft.

Prepare a list of all charges you wish to dispute, including:

the amount,
the payee, and
the date.

You can present these details to your bank or credit provider, which can then dispute the charges with the payee on your behalf. Most banks or credit providers will usually allow you to dispute charges up to 60 days old.

You should also cancel your account and cards to ensure that further fraudulent charges cannot occur.

3. Contact iDcare to obtain a Response Plan

iDcare is a free government-funded service which can provide guidance to people dealing with identity theft.

In addition to providing general advice on your matter, they are able to provide a Tailored Response Plan for your circumstances which can assist you in determining the steps you need to take to respond to your situation and to recover.

4. Apply for a Commonwealth Victims’ Certificate

A Commonwealth Victims’ Certificate can be issued under certain circumstances to help support your claim that you have been a victim of identity crime. This can therefore help you to recover from identity theft.

For example, it can be shown to credit agencies or financial institutions to re-establish your credentials or to support your contention that a transaction is fraudulent.

In order to receive a Victim’s Certificate, you will need to be able to show that you have been a victim of Commonwealth identity crime, which requires there to have been the commission of a Commonwealth indictable offence.

A Commonwealth indictable offence is an offence under Federal (not State) law, which is punishable by more than 12 months’ imprisonment. This could include using your identification details to claim Medicare or Centrelink benefits in your name or the use of your details to travel overseas, for example.

Please note that Commonwealth Victims' Certificates are rarely issued. We would recommend applying for this in addition to utilising other methods mentioned above.

How can Sharrock Pitman Legal assist?

For more advice on whether you may be able to apply for a Commonwealth Victims’ Certificate, or what steps you ought to take in response to identity theft, please feel free to contact our Disputes & Litigation team on 1300 205 506 or, alternatively, fill in the form below.

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.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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