As more complex family situations arise, it is increasingly important to properly draft your Will and to follow careful estate planning process. Our Wills & Estates team summarise the advantages of having a properly drafted Will in place to ensure your estate is distributed in the manner you intended.

The issue

The modern family is an increasingly complex organisation. As instances of blended families and de facto relationships increase, there is a greater need for more comprehensive Wills and very careful estate planning, to ensure that your estate ends up in the hands of those whom you intend to benefit and then in the most advantageous manner for them. Applying a 'one size fits all' approach to making a Will is no longer viable.

The advantages of a properly drafted Will

Of course, the first and foremost step in ensuring that your estate passes to your intended beneficiaries is to have a Will in place. The Administration and Probate Act 1958 sets out provisions for the distribution of an estate should there be no valid Will. Most people assume that everything will just go to their spouse, but this is not necessarily the case. For example, if you also leave behind children, then as much as two thirds of the estate (after an initial lump sum to your spouse) could pass directly to them. In our experience, these legislative provisions virtually never reflect the distribution that is preferred by someone when preparing their Will.

In preparing a Will, consideration can be given to all manner of eventual possibilities and family complexities. For example, should you protect your children's inheritance if your spouse also has children from a previous relationship? If one of your children predeceases you, should their partner receive anything? Do any beneficiaries need their share protected because of bankruptcy, potential family law disputes or addictions? With proper advice and planning, these types of issues can be worked through and provided for in a Will.

A properly drawn Will can reduce the risk of the Will being challenged by someone who thinks they should not have been left out, or should be getting a bigger share.

There are also opportunities for favourable tax planning through comprehensive estate planning in Wills. Wills can be drafted in a way that could help your beneficiaries to receive their inheritance, and future investment income, in a tax effective way.

Key points:

A properly prepared Will is the only way of ensuring your estate goes to the people you intend to benefit. It can also limit and sometimes totally prevent your estate being challenged or disputed.
Prepare your Will while you are still of sound mind and body. Leaving this until the last minute can result in a situation where you no longer have legal capacity to make or alter your Will, due to illness or infirmity.
A distribution from an estate is likely to be the largest lump sum any of us will ever receive and can cause conflict in even the most harmonious family. A clear and comprehensive Will can assist in preventing potential disputes.
Review your Will regularly. In particular, entering a new relationship, the birth of children, or separating from a partner should be triggers for thinking about whether your Will accurately reflects your current circumstances.

If you have any queries regarding estate planning, please feel free to call our Wills and Estates team on 1300 205 506.

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

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

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As more complex family situations arise, it is increasingly important to properly draft your Will and to follow careful estate planning process. Our Wills & Estates team summarise the advantages of having a properly drafted Will in place to ensure your estate is distributed in the manner you intended.

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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The issue

The advantages of a properly drafted Will