Probate & Deceased Estates
Expert deceased estate and probate lawyers in Geelong
When a loved one passes away, there are specific steps when winding up and distributing their estate. However, the paths are different, depending on whether they died with a valid will. Then there are executor or administrator responsibilities, including applying for probate or administration of the estate. Finding your way through these issues can be challenging because deceased estate administration has its own language, governed by technical laws that are often difficult to understand.
The laws exist to ensure that the deceased person's property is dealt with correctly, without the threat of fraud or coercion, so the laws must be followed precisely. However, at the same time, you may be grieving the loss of your loved one, and the executor responsibility can feel overwhelming.
That's why an experienced administration and probate lawyer can be invaluable: a steady hand to guide you, check compliance with all relevant laws, and advise you what to do next.
Someone you can trust.
Glossary
What is the estate administration process?
What happens when a person dies with a valid will?
When a person (the testator) dies, leaving a valid will, the executor must step in to finalise and distribute the estate. If the will appoints you to act as executor, you are responsible for locating all the assets and debts, applying for probate, distributing the estate to the beneficiaries and winding it up. This information is used when applying to the Supreme Court of Victoria for a grant of probate.
If the estate is valued under a certain amount, it may be considered a small estate. Often, it's not necessary to get a grant of probate for a small estate. The value changes depending on the organisation involved.
What is probate?
Probate is the legal process of proving that a will is valid. It gives the executor permission to wind up and distribute the estate according to the will.
As executor, you may be required to apply for a grant of probate in the Supreme Court of Victoria. You must also provide:
- The original will
- The testator's death certificate
- A list of everything in the estate, including assets, debts, personal items and valuations
Before applying for probate, you need to locate all the assets, including money held in bank accounts, and identify the debts. It may take some time, depending on the complexity of the financial arrangements and how difficult it is to locate the assets, debts and other property. You must also advertise on the Supreme Court website that you intend to apply for probate, giving at least 14 days' notice before submitting the application.
If you're feeling overwhelmed by this, you're not alone. Many executors find themselves in a challenging position, especially if the testator was a family member or close friend. However, it's not all bad news. You can seek legal advice from a probate lawyer to take care of these formalities, including drafting the application for probate with supporting affidavits.
An affidavit is a document that is a person's written statement. It becomes evidence once it is sworn, signed, witnessed, and dated. Therefore, the Court will consider the affidavit carefully when making a decision to issue the grant of probate. For this reason, all affidavits must be truthful and accurate.
Once your application is submitted, the Court will carefully check all documents and consider:
- Whether the will is valid; and if it is,
- Whether to grant probate.
This is a critical part of the process because any irregularity may indicate fraud.
Once satisfied, the Court will grant probate as an order. As executor, you can rely on this document as proof of your authority to make decisions about the estate. For example, if you need to sell the testator's home, you can show the order to the real estate agent, bank, mortgage broker, conveyancer and anyone else requiring proof of your authority.
If the Court finds a problem with the will or the other documents, it may not grant probate unless you fix the problem or produce further evidence. Examples include:
- Incorrect spelling of a beneficiary's name
- A staple mark on the will
- An allegation that the testator didn't understand what they were doing when they made the will
Before deciding to apply for a grant of probate, we recommend that you seek specialist legal advice immediately to avoid unnecessary delays and to work out how best to manage the problem.
Contact us to learn more about our probate legal services in Geelong.
Probate is the legal process of proving that a will is valid. It gives the executor permission to wind up and distribute the estate according to the will.
Frequently asked questions about probate
What happens when a person dies without a valid will?
Under Victorian laws, a situation where a person dies without a valid will is known as intestacy, or dying intestate. It can happen if the person:
1. Didn't make a will; or
2. Made a will, but all or part of it was invalid
There are specific laws that deal with intestacy and intestate estates. For example, if you are the deceased's next-of-kin, you can apply to the Supreme Court of Victoria for permission to wind up and distribute the estate. When the Court gives permission, it grants Letters of Administration, and you are appointed the administrator.
Having a valid will means that the testator can control what happens to their assets after they pass away. But this control doesn't exist where a person has died intestate. For example, there are no guarantees that the deceased person's estate will be given only to the people they would have chosen to inherit.
What are letters of administration?
Letters of administration is an order of the Supreme Court of Victoria that permits a person to deal with an intestate estate.
The permission can be granted to the person who makes the application to the Court, and they become known as the administrator.
The administrator can use the order as proof of their authority, allowing them to wind up the estate, and distribute it to the beneficiaries.
Letters of administration is an order of the Supreme Court of Victoria that permits a person to deal with an intestate estate.
Frequently asked questions about the administration of intestate estates
Our probate and deceased estate services
We offer extensive deceased estate and probate legal services, including:
- Applying for probate or letters of administration
- Advising executors and trustees about their rights and duties
- Advising about family and testamentary trusts and dealing with trust funds
- Identifying the estate's assets and debts and arranging valuations
- Locating financial assets, including superannuation, bank accounts, and shares
- Selling or transferring estate property
- Paying the estate's debts, including mortgages and funeral costs
- Distributing inheritances to beneficiaries
- Arranging the information needed for the estate's tax returns
- Conducting family mediation and negotiation
- Contesting wills and defending legal action
Deceased estate administration and probate lawyers in Geelong
We'll help you perform your executor or administrator duties.