We can help with Deceased Estates
Probate
WHAT IS PROBATE?
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
WHAT IF THERE IS NO WILL?
This situation is referred to as intestacy, and the law determines how assets will be shared out after debts have been paid. If you are the next of kin, you can apply for Letters of Administration, which will give you authority to finalise the Estate. See Letters of Administration below.
WHO IS THE NEXT OF KIN?
Examples of next of kin include but are not limited to a surviving spouse or a child of the deceased person.
LETTERS OF ADMINISTRATION
WHAT ARE LETTERS OF ADMINISTRATION?
When a person dies intestate (without a will or the will they have made is not valid), Letters of Administration are an order of the Supreme Court of Victoria that allows a person to deal with the deceased person estate. Similar in operation to a grant of probate, the person named in the letters of administration is called the Administrator.
EXECUTOR DUTIES
WHAT IS AN EXECUTOR?
An executor is a person who ensures that the wishes of the deceased person, as written in their will, are carried out after they die. An executor is named in the will, and can be a spouse, a trusted friend or relative, a lawyer, or the State Trustee.
CAN A PERSON HAVE MORE THAN ONE EXECUTOR?
Yes. However, from a practical point of view, it is best that a person nominates no more than four executors.
WHAT ARE THE DUTIES OF THE EXECUTOR OF AN ESTATE?
Executor’s duties may include responsibilities such as:
- Organise the funeral, notices for the paper, and flowers.
- Locate the will.
- Obtain a copy of the Death Certificate.
- Make sure any property and assets are safe and secure
- Determine the value of assets
- Apply for Probate
- Pay insurance policies, debts, and taxes
- Collect monies belonging to the deceased from financial institutions and insurance companies
- Collect debts owed to the deceased
- Lodge final tax returns for the deceased and for the Estate.
- Sell properties and assets.
- Report to beneficiaries.
- Distribute the proceeds of the Estate to the beneficiaries.
- Set up required trusts.
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.
DO EXECUTORS GET PAID?
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you are not a beneficiary, then you can apply to the Supreme Court for commission.
WHAT IF I’M NOT UP TO THE JOB OF EXECUTOR?
Being named an Executor does not mean you have to accept the responsibility. If there is another Executor named, they can take on the responsibility. If you are the sole executor, you can apply to the Court to have someone else appointed. You cannot change your mind later, though – giving up the responsibility is final.
DO I NEED A LAWYER?
Executor’s duties can be complicated. Depending on the complexity of the Estate, it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the Estate, not the Executors.
HOW CAN WE HELP?
The duties of an executor or administrator of an estate can be complicated and may require legal advice. Our friendly, efficient, and professional team can assist you as much as you need.
SURVIVORSHIP APPLICATIONS
WHAT DOES SURVIVORSHIP MEAN?
Survivorship occurs when the joint owner of an asset dies. An asset might be real estate, household goods, bank accounts, a business, or shares. Upon the death of a joint owner, ownership passes, by survivorship, to the surviving owners.
WHEN IS A SURVIVORSHIP APPLICATION REQUIRED?
A survivorship application is required so that a deceased person’s name can be removed from the title of the jointly held property. After the survivorship application has been processed, transfer of title and ownership of the property or asset(s) will pass to the surviving owner(s).
A survivorship application can involve property and assets held both inside and outside of Victoria, including another country.
After the transfer of title and ownership, the surviving owner(s) will then be liable for any rates, taxes, and all other responsibilities concerned with the property.
WE CAN HELP
Losing a loved one is a stressful time and handling the legal paperwork for what seems to be the simplest of matters, can add to this stress. We can undertake the survivorship application for you or help you as much as you need with the process.
CONTESTING A WILL
WHEN MIGHT A WILL BE CONTESTED?
A will might be contested or challenged because:
- The deceased person did not have capacity at the time that they made the will.
- The will was made under the influence of another.
- Someone whom the deceased had a responsibility to provide for, is believed to have not been left a fair share.
WHAT IS CAPACITY?
Capacity means that the person making a will, at the time must:
- Be able to understand the importance of making a will
- Understand their moral obligation to provide for their surviving spouse, children or any other family member who is financially dependent on them
- Know the approximate value of the property and assets of the Will
- Not suffering from any mental illness.
WE CAN HELP
We can help if:
- you are considering contesting a will,
- you face the possibility of not obtaining a bequest from a will, or
- if you are the executor(s) of the Will that is being contested.
Our friendly, plain-speaking, and professional team are here to talk with you about your situation. Contact us to find out more.
SUPERANNUATION
SUPERANNUATION CANNOT BE LEFT TO SOMEONE IN A WILL.
A binding nomination statement is written by the superannuation account holder, and names the person(s) who should receive the funds in the event of their death.
However, we can include a superannuation will clause in a will, which ensures that superannuation will be paid into an estate and distributed according to the wishes of the person making the Will. The binding nomination statement and the Will must correspond.
WE CAN ENSURE THAT THE SUPERANNUATION CLAUSE IS VALID.
Superannuation often involves large sums of money, and it is of the utmost importance that a binding nomination statement and clause in a will are correct and legally enforceable. Contact us for helpful, reassuring, and professional advice.
We Can Help
Contact us to find out how we can assist you.
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