Introduction

At any stage in your life, you may need a Will, regardless of your age. To ensure peace of mind and a greater level of certainty surrounding the division of your assets after your death, the making of a valid Will is something which is highly recommended.

Who can make a Will and should everyone make one?

Under the Wills Act 1997, anyone who is over the age of 18 years old and possesses proper capacity can make a Will. However, there are limited circumstances in which a person under the age of 18 years can make a Will.

Not everyone makes a valid Will during their lifetime. For those who opt not to make a Will, their estate is distributed in accordance with the strict laws of intestacy (where a person dies without a Will). When assets are collected and distributed according to the predetermined rules of intestacy, it is not uncommon for some family members and close friends to receive nothing, often adding to the stress of an already difficult time for your loved ones.

How do I make a Will?

Wills can take many forms. However, if not correctly completed, they have the potential to cause problems which may actually lengthen the process, leaving your beneficiaries worse off in the long term.

For this reason, it is advisable to consult with an experienced legal practitioner when making a Will. They can provide assistance to minimise risks that may eventuate and can provide clarity regarding complex areas, such as co-ownership of assets and tax minimisation.

The cost of drafting Wills varies, depending on the complexity of your personal and financial circumstances. It is important to remember, however, that the cost of having your Will expertly prepared is far less than the potential financial and emotional cost to your beneficiaries of you not having a valid Will.

Do I still need a Will if I have minimal assets?

Yes, as a Will not only provides certainty in terms of your financial assets but can also guide your executors as to your wishes surrounding non-financial matters, such as the guardianship of your children, as well as preferred funeral and organ donation arrangements.

Can I change or update my Will if my circumstances change?

You may update your Will and/or revoke your previous Will at any time, provided you still possess proper capacity. To avoid confusion, it is advisable to seek legal advice when updating or revoking your Will to avoid any possible issues after your death.

Does getting married or divorced affect my Will?

In Victoria, when you marry or divorce, the validity of your Will may be affected. If either of these events occur, it is recommended you seek professional legal advice so that you have someone to guide you through these complex legal issues.

How can Sharrock Pitman Legal help?

A Will is always a timely and worthwhile investment. It provides you with peace of mind and certainty that your wishes will be respected and that your assets will be divided between your beneficiaries as you have intended. If you require assistance in making a new Will or updating an old Will, please feel free to call our Accredited Specialist Wills and Estates Law team on 1300 205 506 or 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

Melinda Van Rooyen

Melinda Van Rooyen is a lawyer in our Wills & Estates team. Melinda can be contacted on (03) 8561 3311 or email melinda@sharrockpitman.com.au.

‍

Taxes and deceased estates

Can I refuse to act as an Executor?

How does separation affect a Will?

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

Free Property Law webinar -