Probate and Estate Administration
What is Probate?
Probate is an approval by the Supreme Court of Victoria which certifies that all appears in order with the Will and that the Executor can continue with their job. It is a stamped, sealed certificate from the Court.
Is Probate always needed?
The companies or organisations who hold assets in the deceased’s name determine whether or not they require you to give them a copy of Probate before they release those assets.
Usually they will require Probate where the assets are over a certain dollar value, as a measure of protection for themselves.
It is worth noting that Probate is almost always needed to transfer property, unless the property was owned as joint tenants or joint proprietors.
How do you get Probate?
Obtaining Probate is usually a fiddly and time consuming process for which most people seek the assistance of a lawyer.
It involves preparing an application to the Supreme Court which sets out many details about the deceased, the Executor, the Will and the assets of the deceased. It also requires certain searches to be performed and an advertisement to be placed notifying of the intention to apply for Probate. Accurate research must be done to collect all of the information required for the application, and the application must be prepared strictly in accordance with the rules of the Supreme Court.
Once the application is complete, it is lodged with the Court, who then assess it and send out approved Probate. If the Court has any questions on the application, these need to be dealt with before they will issue Probate.
Why do I need a lawyer?
Many people we see start out trying to do this process on their own, but end up overwhelmed and needing assistance.
Some of the reasons you will find a lawyer helpful are:
- It takes a lot of time to prepare a Probate application. There are usually many different matters to follow up at once and a great deal of information to collect. Most people simply do not have the time or energy to do this.
- The rules regarding Probate applications can be quite particular and the lay person can find it quite difficult to comply with them all.
- The role of Executor is a taxing one that usually involves dealing with the family and often the personal possessions of the deceased, and all at a time when you may be grieving as well. Most Executors are extremely relieved to have assistance to take a great deal of the burden off of their shoulders.
How long does it take?
Unfortunately, Probate is not a quick process. It is not unusual for a grant of Probate to take some 3-6 months to complete. While we endeavour to move things along quickly, some delays are inevitable.
It is not uncommon for beneficiaries under a Will to expect to receive their entitlements fairly quickly, and to put pressure on Executors to move things faster. It is helpful at the outset for everyone to understand that this process takes quite a bit of time.
How much does it cost?
There are two sets of fees in obtaining Probate. There are ‘disbursements’ which will be the same regardless of whether you had a lawyer assisting you or not. They are the costs the Court charges for reviewing the Probate application and the cost for advertising the application.
The other costs are the professional legal fees. At Legal Essentials we usually charge about $3000 (inc GST) for a standard grant of Probate. This fee only varies if there are unusual circumstances which we would advise you about before incurring any costs.
While some up front costs may be incurred by the Executor personally, these are all reimbursed from the estate. In many cases when working with us, only the disbursements need to be paid upfront, and the remainder is only paid once money is received from the estate.
Why Legal Essentials?
Legal Essentials is a boutique law firm that prides itself on knowledge and expertise. You will notice a difference with us as we offer a caring, personalised service which values each client and treats them as an individual. We have a compassionate approach as we understand that this is often a difficult time for those involved.
It is not uncommon for Wills to appoint more than one person as Executors- often adult siblings. And unfortunately, it is also not uncommon for siblings to fight. We see this regularly in estates where the siblings are both Executors but can’t agree or communicate on the running of the estate. So, what happens? Initial…Read More