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Probate & Estate Administration

Our probate and estate lawyers and clerks have been assisting executors with complex and technical applications, estate administration and probate legal advice for many years. 

In addition, we are regularly appointed by the Supreme Court of Victoria to administer complex estates where an independent administrator is required, with the consent of all parties or on the Court’s own motion. Our Principal solicitors are regularly appointed as the executor in people’s Wills.

Probate & Estate Administration

The administration of an estate is the process by which an executor or administrator winds up the financial and legal affairs of a deceased person. The administration can vary from being straight forward to being extremely complicated depending on the deceased’s Will, if any, their financial affairs and relationships.  

The administrator or executor will first need to identify the assets (e.g. bank accounts, property, investments) and liabilities (e.g. mortgage, loans, unpaid invoices) of the estate. 

There are some assets which do not form part of an estate as the date of death, including any asset which is jointly owned with any other person (not to be confused as assets held as tenants in common), assets held by a family trust and sometimes superannuation and life insurance policies which may paid directly to a beneficiary. 

What is probate?

A grant of probate or letters of administration is a form of Order that is issued by the Supreme Court of Victoria that allows an executor or administrator to deal with deceased’s assets and liabilities. 

Where a person leaves a valid Will, that Order is usually called a grant of probate (commonly known as ‘probate’).

Where a person does not leave a valid Will, the Order may be called a grant of letters of administration. 

It is not always necessary to obtain a Grant of Representation to deal with a deceased estate. Whether a Grant is required will depend on the nature and value of the assets and liabilities of the deceased. 

What is the difference between an administrator and an executor?

An executor is the person/s or company who has been appointed by the deceased in their Will to administer the wishes of the deceased. 

Where there is no Will, the appointment of the executor is invalid or fails (for example, where the executor has died), or in some other circumstances, an administrator will be appointed to administer an estate. An administrator is often the closest next of kin of a deceased person or the person with the largest interest in their estate. They act in the same manner as an executor. On occasion, independent administrators are appointed and the Principal Lawyers of this office will accept those appointments. 

How is an estate distributed if there is no valid Will?

If a person dies without a valid Will, then they are deemed to have died ‘intestate’. Their estate will be distributed in accordance with the provisions of the Administration and Probate Act 1958, which sets out who benefits from an intestate estate.

The beneficiaries of an intestate estate depend on the relationships of the deceased; whether they left a spouse or de facto partner, and/or children and so forth. 

Are there any issues which may arise when seeking a Grant of Representation?

When applying for a grant of representation there are some considerations that an administrator or executor ought to be aware of which can complicate your application.

Some issues which may cause delay in obtaining a grant of representation include:

  • Whether a Will has been executed properly 
  • Whether there are any pin holes or markings on the Will 
  • Whether the original Will has been lost 
  • Whether there are capacity concerns raised 

  • Whether the deceased was separated at the time of death 
  • Whether children of the deceased are listed on death certificate 
  • Whether the deceased was in a domestic or de facto relationship 
  • Whether the deceased has children from a previous relationship but has remarried

What is the role of the Administrator or Executor?

Once a grant has been obtained, the administrator or executor has a responsibility to properly and efficiently administer the estate of the deceased person. 

 Some of the responsibilities include: 

  1. Finalising all the deceased’s assets including bank accounts, investments or entitlements and ensuring all assets are paid into the estate. An administrator or executor is obligated to ensure that the assets are maximised during the administrated (eg – investing funds pending distribution)
  2. paying liabilities of the estate. 
  3. Attending to any real estate. The property will first need to be transferred to the executor or administrator before it can be sold or transferred.
  4. Ensuring that all beneficiaries are informed and provided with updates.
  5. Selling or transferring any shares to beneficiaries. 
  6. Attending to any tax returns and finalising tax affairs of the estate. 
  7. Paying any gifts and ensure any items (e.g. Jewellery) are gifted to beneficiaries under a Will.
  8. Defending any claims against the estate.
  9. Distributing in accordance with the Will or intestacy provisions.

Can an executor distribute as soon as a Grant of Representation is obtained?

Once the Grant of Representation is made, an eligible person is able to bring a claim for provision or further provision from the estate. These applications are known as ‘Testator’s Family Maintenance’ or ‘Family Provision’ claims.  An applicant has six months from the date of the grant to make their application to either the County or Supreme Court of Victoria (unless time is extended by the Court). 

A prudent administrator or executor should not make distribution from the estate during this period. If they do distribute the estate within this timeframe and a claim is made and that claim is successful, the administrator or executor may be personally liable to meet the award made to the applicant by the Court and any costs the Court requires the estate to pay. This is a significant risk. 

Limited grants

Sometimes there may be insufficient information to apply for a grant of probate or letters of administration, for example, where a death certificate has not been issued, or where there is a dispute about the validity of the Will.

In these circumstances, the deceased’s bills may be piling up, or there may be assets that require an administrator to be able to transact, for example, where a property may have sold whilst the deceased was alive, but will shortly settle.

The Court has the power to make limited grants, to deal with specific assets, pending litigation, or to conduct litigation. 

Our office can advise in relation to limited grants and assist you in making those applications.   

Independent administration

In some circumstances, dispute can arise between executors or beneficiaries of an estate which may prevent its proper administration.

The parties and/or the Court may consider it appropriate for executors to either stand down or be removed, and an independent administrator with no relationship with any party to be appointed to finalise the administration of the estate. 

Suzanne Lyttleton and the other Principal Lawyers regularly accept appointment as independent administrators for estates in both general administration and limited grant matters. 

Why you should consider Suzanne Lyttleton Lawyers to assist you

Suzanne Lyttleton Lawyers have the experience and compassion to guide and assist an executor or administrator with administering the estate to ensure the administration is completed diligently and with empathy. 

Trusted & Responsive Specialists.

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