It can be a daunting experience when it comes to managing a deceased estate, especially for people who are still grieving the loss of a loved one.
Barrett Walker has extensive experience in obtaining grants of probate or letters of administration on behalf of our clients.
We can assist our clients in the administration and winding up of deceased estates in an efficient and effective manner.
The probate and administration process of deceased estates
Unless it is a small estate, a person who wishes to administer a deceased estate in Victoria (Australia) must first apply to the Supreme Court of Victoria for a grant of representation. A grant of representation gives the applicant power to deal with the deceased's property (such as bank accounts, shares, real estate, and intellectual property) and thus allowing the applicant to collect and release the assets, and settle the liabilities of the deceased for the benefit of the creditors and beneficiaries.
What is probate?
The three types of grant of representations are grant of probate, letters of administration with will annexed and letters of administration. This depends on whether a valid original can be produced by the applicant.
Grant of probate
A grant of probate is the most straightforward category. When a person passes away leaving a valid will, the executor(s) named in the will is entitled to apply to the Supreme Court of Victoria for a grant of probate by providing relevant documents such as the original will, death certificate, inventory of assets and liabilities and an affidavit. Before these documents can be lodged, an advertisement should also be placed on the Supreme Court of Victoria notice board for 28 days advertising the intention of the executor(s) to apply.
Letters of administration with will annexed
Often we see situations where a deceased left a valid will but the named executor(s) are unable or unwilling to apply for probate. In these circumstances, another person who wishes to apply to the court for a grant of representation can apply to become an administrator.
In addition to providing all the documents specified above, an adequate explanation should also be provided to the court to explain why the applicant is entitled to become the administrator. For instance, in the absence of the executor, the applicant has the biggest interest in the deceased estate.
Letters of administration
In situations where no valid will can be found, there will be what is called an "intestacy." The process is similar to applying for letters of administration with will annexed. The applicant will need to explain his interest in the deceased estate and why, in the absence of a will, the applicant is entitled to become an administrator.
Administration of estate
Once the probate or letters of administration has been obtained, the executor or administrator is then required to:
Gather and preserve the assets of the deceased estate;
Notify the beneficiaries;
Pay off outstanding liabilities (including tax liability) of the estate;
Defend the estate in any legal proceedings;
Distribute the balance of the estate to the beneficiaries under the will or provisions of the Administration and Probate Act 1958 or court rulings (if any);
Set up trusts for the beneficiaries (if applicable).
What could go wrong?
Although it might sound like a straightforward process, a lot of issues can become contentious when it comes to wills and estates. Here are some of the most common issues we have dealt with:
the mental capacity of the will-maker is often called into question.
The terms of the will may become contentious where a person, being a named beneficiary or a potential beneficiary, may hold the view that he or she has not been given a fair entitlement and may seek orders from the court invalidating the will or orders varying entitlements.
When all named executors are or become unable to apply for a grant of representation, and multiple parties compete for a grant of representation.
When all named beneficiaries pre-decease the will-maker and multiple parties compete for entitlement in the estate.
At Barrett Walker, we have extensive experience in dealing with deceased estates. We have acted for executors, beneficiaries, creditors, and various claimants. We offer practical legal advice and aim for parties to come to an early resolution.