Once it has been ascertained whether or not the deceased made a will, the next step for an executor or family member is to find out whether a Grant of Representation is required to allow them to administer the estate and deal with the deceased's assets. Wills & Estates Lawyer Sarah Slattery explains.

Introduction

When a family member dies, it is often difficult to know what are the first steps in dealing with an estate.

Is Probate required?

A Grant of Representation, the most common of which is a Grant of Probate or Grant of Letters of Administration, is a legal document issued by the Supreme Court of Victoria that allows the executor or administrator to deal with the deceased's assets.

In a general sense, an executor or administrator will be required to apply to the Court for a Grant of Representation, when the deceased person held any one of the following assets in their sole name:

An Accommodation Bond (RAD) with an aged care facility;
Real estate that was held solely by the deceased, or as tenants in common;
A bank account over a certain value, dependent on the policy of the asset holder or institution, but commonly around $50,000; or
Superannuation that is payable to the estate.

Each bank, share registry and institution has their own policy which established whether a Grant of Representation is required for the executor or administrator to access the deceased's assets. It is important to contact each applicable institution in which the deceased held assets to ascertain what is required to release the estate assets.

Jointly held assets

When assets are jointly held with another person, generally a spouse, partner or family member, the deceased's ownership rights to the asset will not form part of their estate when they die, but rather the ownership automatically passes to the surviving asset holders. In circumstances that all of the deceased's assets are jointly held with another person, a Grant of Representation will not be required to deal with the estate.

Foreign property holdings

When a deceased owns property overseas, it will depend where the assets is held whether a Reseal of Probate of the Victorian grant can be used to deal with the estate administration of the foreign assets.

How Sharrock Pitman Legal can assist?

At Sharrock Pitman Legal, our Accredited Specialist Wills & Estates team can guide both estate Administrators and Executors through the process of managing a deceased estate. Our Wills & Estates team has experience managing complex estates such as those which include business and overseas assets, trusts and blended families.

Please do not hesitate to contact our Wills & Estates team on 1300 205 506 or email willsandestates@sharrockpitman.com.au.

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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

Sarah Slattery

For further information contact

Sarah Slattery

Sarah is an Associate Lawyer at Sharrock Pitman Legal. As a member of our Wills and Estates team, Sarah is dedicated to successfully resolving her clients matters in a cost-effective and timely manner. For further information, please contact Sarah directly on (03) 8651 3322.

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Once it has been ascertained whether or not the deceased made a will, the next step for an executor or family member is to find out whether a Grant of Representation is required to allow them to administer the estate and deal with the deceased's assets. Wills & Estates Lawyer Sarah Slattery explains.

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 -

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When is Probate not required?

Introduction

Is Probate required?

Jointly held assets

Foreign property holdings