About Probate & Administration
Administering a deceased estate including any trusts that form part of it can be a daunting and complex process, creating stress for both beneficiaries and executors. Mountains of paperwork and trying to interpret legal jargon are the last things you want to deal with when grieving the loss of someone important in your life. The process is exacerbated when the estate or terms of a loved one’s Will are disputed.
Our probate and administration services include
- Interpreting the Will of the deceased
- Advising executors and trustees regarding their duties and rights
- Applying for Probate of the Will in the Supreme Court
- Dealing with intestacy (where there is no Will) and applying for Letters of Administration
- Identifying estate assets and liabilities, and obtaining valuations of estate property
- Collecting estate assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
- Advising on family and testamentary trusts and the administration of trust funds
- Distributing bequests and inheritances to beneficiaries
- Selling or transferring estate property
- Organising information for estate tax returns
- Family mediation and negotiation
- Contesting wills and defending estate litigation in the Supreme Court.
Our probate and administration lawyers have the experience and compassion to guide and assist you through this process and to ensure that the best possible outcomes are achieved with the least amount of distress for all parties.
Are you the Executor of a Will?
An executor is the person appointed under a Will to deal with a deceased person’s affairs after he or she dies. If you have been chosen by somebody to be their executor, you have been given responsibility to manage his or her estate according to the terms outlined in the Will and to protect estate assets under the various laws and rules that govern estate administration in Australia.
Responsibilities of an executor
An executor’s duties may include responsibilities such as:
- Organising the funeral, notices, flowers
- Locating the Will and obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Applying for Probate
- Paying insurance policies, debts, and taxes
- Selling or transferring properties and assets
- Reporting to beneficiaries and distributing the proceeds of the estate to them
- Setting up trusts
Do I need a lawyer?
Being an executor can be very overwhelming, particularly when you are grieving. That said, most executors are guided in their legal responsibilities by a lawyer experienced in probate and estate administration. Estates vary in complexity, and we recommend getting advice from a lawyer when carrying out your obligations as an executor. The cost of legal advice is usually covered by the estate.
What if I’m not up to the job?
Just because you have been named an executor doesn’t mean you have to accept the responsibility. If there is another executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.
Obtaining a Grant of Probate
Probate is the Supreme Court’s recognition of a Will’s validity and permission for the executors to carry out their duties. The executor of the estate must follow the applicable processes to apply for probate. You will likely need a grant of Probate to deal with assets of an estate, such as selling property and obtaining bank funds.
Your lawyer can advise if obtaining Probate is necessary or may recommend you obtain Probate to minimise your exposure to personal liability.
Dealing with disputes
Not all deceased estates can be administered without a dispute between nominated beneficiaries or, as is often the case, would-be beneficiaries. We can advise regarding a broad range of potential issues.
Family provision claims
A family provision claim is based on an eligible applicant’s right to be adequately provided for by a deceased person where a Will (or proposed administration on intestacy) fails to do so. A successful claim will result in a redistribution of the estate assets in favour of the applicant. Eligibility varies between different Australian jurisdictions but generally includes a spouse, former spouse, de facto partner or child of the deceased.
Challenging the validity of a Will
You may be able to challenge a Will if you believe it is a forgery or if the will maker lacked the mental capacity to make the Will. These types of claims often arise when the deceased was elderly and sick for long periods or suffered from dementia or other forms of memory loss.
Other types of estate litigation may include the correct interpretation of the terms of a Will, obvious errors, or mistakes in a Will, or claims to remove an executor from his or her position.
Estate administration and litigation can involve complex legal issues – these matters can be contentious, causing stress and uncertainty as executors, administrators and family members struggle to cope with grief while defending their legal rights or the wishes of the deceased
If you need any assistance, contact one of our lawyers [email protected] or call 03 9598 8699 for a no-obligation discussion and for expert legal advice.