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Jansen Walsh & Grace

Jansen Walsh & Grace have over 40 years' experience of probate and estates.  This Guide to intended to help you if your loved one or one of your parents or relatives have died.

"when do I not need probate?

Probate is an authority granted by a Supreme Court appointing you as the executor to look after your parent's or loved one's estate

You do not usually need a grant of representation:

  • if there is real property, but the deceased held it as joint registered proprietor;
  • for assets in a superannuation fund;
  • for assets held in a family trust or a unit trust or a hybrid trust;
  • for most assets valued at less than $50,000.

You will require a grant of representation if:

  • there is an accommodation bond;
  • there is a lease or licence of a unit in a retirement village;
  • there are term deposits or bank accounts with a value of $50,000 or more.

“What should be done with the assets and liabilities of the estate?”
As executor, you are responsible for the safekeeping of the assets of the estate.  You should:

  • make an itemised list of all of the assets as soon as possible, including a description of their condition and where they are stored (if necessary).  Using a video recorder or camera may be a good method of recording what household items exist;
  • ensure that property such as houses, buildings, boats and cars have current and adequate insurance.  Consider whether the insurer needs to be notified because of any change i.e.  the house is vacant or the vehicle is housed elsewhere;
  • ensure that items of dollar or sentimental value such as jewellery, photographs, paintings etc are adequately secured;
  • consider whether the locks to houses and buildings need to be changed;
  • consider obtaining valuations of personal chattels (where appropriate).

Consideration should be given to what to do with all household items.  Some items may be given to the beneficiaries in part satisfaction of their interest in the estate, some may be sold to second-hand dealers or given to charities or otherwise disposed of.  Care must be taken in making these choices.  Many executors consult with the family of the deceased before making these decisions.

You have an obligation to ensure that assets are not wasted and do not diminish in value.  If money is collected from the sale of assets and is not to be distributed straight away, it needs to be invested.  If real property is to be held for some time, consideration should be given to whether it should be rented.

In some instances, professional valuations will be needed if beneficiaries are given items.  Alternatively, the value may be agreed upon by you and beneficiaries.

You should also ensure that all liabilities of the estate are accounted for.  This may include the usual household accounts such as telephone accounts and credit card bills but will also include other liabilities, such as income tax.

You may need a grant of probate from the Supreme Court.  However, sometimes you don't.  we will check to see if you need probate.


"My loved one or parent has died?  What should I do?”
Make a list of all of the assets (video recording or photographing household items is a good idea);
  • Ensure the property is secured (change locks on buildings if necessary, move vehicles to secure location if no garage, store valuable household items securely);
  • Redirect the mail;
  • Cancel the driver’s licence;
  • Cancel any Centrelink payments, such as the age pension;
  • Claim any medical expenses;
  • Cancel memberships and claim refunds;
  • Cancel health insurance and claim refund;
  • Notify home and contents insurance if the property is unoccupied;
  • Apply for a death certificate;
  • Search to see if there is a will.

“Who arranges the funeral?”
The executor is responsible for making the funeral arrangements if the deceased has not already made those arrangements.  The executor should follow any directions left by the deceased as to the funeral arrangements but is not bound to do so.  Things to consider include:

  • whether the body is to be buried or cremated;
  • if the body is to be buried, where;
  • if the body is to be cremated, whether the ashes are to be scattered or retained;
  • the nature and format of the funeral service;
  • who they should notify about the service.

If you are not an immediate family member, then it would be prudent to consult with the family about the funeral arrangements.

The reasonable cost of the funeral is an expense of the estate, but you should be careful not to incur expenses beyond the available funds in the estate.

“What happens to the body of the deceased?”
You may be asked whether organs can be donated.  This usually occurs where the deceased has registered with the organ donation register or there is a request by the hospital or the next of kin.  The decision is usually left to the next of kin.

"Should there be a reading of the will?”
It is not usual to have a formal reading of the will.  Usually the beneficiaries are notified of their interest by the executor or the firm of solicitors appointed by the executor.

“Who is entitled to a copy of the will?”
In Victoria, various categories of people are entitled to request a copy of a will if it was made on or after 20 July 1998:

  • any person named or referred to in the will, whether as beneficiary or not;
  • any person named or referred to in any earlier will as a beneficiary;
  • any spouse of the deceased at the date of the deceased’s death;
  • any parent, guardian or children of the deceased;
  • any person who would be entitled to a share of the estate if the deceased had died without leaving a will;
  • any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the deceased if the deceased had died without leaving a will; and
  • any creditor or other person who has a claim at law or in equity against the estate of the deceased and who produces evidence of that claim.

A beneficiary has no legal right to see a will of a deceased person made before 20 July 1998.  However, once probate is granted, a copy may be obtained from the Supreme Court.

“I don’t think there is a will?”
If there is no will, the next of kin of the deceased usually has to apply to the Supreme Court for a document called “Letters of Administration”.  This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an executor, but called an administrator (male) or administratrix (female).  Approval is usually granted in favour of a family member or another person who has a substantial interest in the estate.

It is usually appropriate and good practice for the executor, or the firm of lawyers appointed by the executor, to write to the beneficiaries and tell them they are beneficiaries under the will as soon as possible.

“What should the beneficiaries be told?”
There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the will are given to them.  A beneficiary is entitled to receive a copy of the will upon request as set out under the heading “Should there be a reading of the will?”

This can often be a very emotional and confusing time for beneficiaries and open, honest and regular communication with beneficiaries is often the best way to minimise any difficulties that may arise.  Failing to be open and honest in dealing with beneficiaries can lead to distrust and conflict later.

An executor may often instruct us to notify the beneficiaries of their entitlement and where necessary, communicate with beneficiaries as to the progress of the administration of the estate.  Alternatively, they may choose to do so themselves.


“Why do I need probate?”
Probate is an authority granted by a Supreme Court (usually it would be the Supreme Court of Victoria where there is property in Victoria) that confirms the validity of the will and the appointment of the executor to look after the estate of the deceased.

“What should be done with the assets and liabilities of the estate?”
As executor, you are responsible for the safekeeping of the assets of the estate.  You should:

  • make an itemised list of all of the assets as soon as possible, including a description of their condition and where they are stored (if necessary).  Using a video recorder or camera may be a good method of recording what household items exist;
  • ensure that property such as houses, buildings, boats and cars have current and adequate insurance.  Consider whether the insurer needs to be notified because of any change i.e.  the house is vacant or the vehicle is housed elsewhere;
  • ensure that items of dollar or sentimental value such as jewellery, photographs, paintings etc are adequately secured;
  • consider whether the locks to houses and buildings need to be changed;
  • consider obtaining valuations of personal chattels (where appropriate).

Consideration should be given to what to do with all household items.  Some items may be given to the beneficiaries in part satisfaction of their interest in the estate, some may be sold to second-hand dealers or given to charities or otherwise disposed of.  Care must be taken in making these choices.  Many executors consult with the family of the deceased before making these decisions.

You have an obligation to ensure that assets are not wasted and do not diminish in value.  If money is collected from the sale of assets and is not to be distributed straight away, it needs to be invested.  If real property is to be held for some time, consideration should be given to whether it should be rented.

In some instances, professional valuations will be needed if beneficiaries are given items.  Alternatively, the value may be agreed upon by you and beneficiaries.

You should also ensure that all liabilities of the estate are accounted for.  This may include the usual household accounts such as telephone accounts and credit card bills but will also include other liabilities, such as income tax.

“How long does it take to get probate?”
“Mum died in November and it is now January and the executor has not yet paid me my share of Mum’s estate.  I promised my kids I would give them part of my money at Christmas.  Why is it taking the executor so long to give me my money?”

The time it takes to finalise an estate depends on what must be done and how long it takes for each step to be completed.

Obtaining a grant of probate is governed by the Administration and Probate Act and the rules of the Supreme Court.  

Those rules and time limits must be complied with.

First, you have to wait for the death certificate.  Although the time for issuing a death certificate is about a week, the death must first be registered before the Registry of Births, Deaths and Marriages can issue a death certificate.  This requires formal notification to be submitted to the Registry by the person responsible for organising the disposal of the remains (usually the funeral director) and the relevant medical practitioner.  This can take up to 10 weeks.

Next you must wait until the prescribed period of 14 days have expired after advertising before you can apply for a grant of probate.

The documents must be drafted.  These are complex documents and have to be drafted with care.  It usually takes most of a day to draft them.  One of the most-time consuming tasks we have is trying track down the present whereabouts of each witness.  This can often take us weeks.  Sometimes we cannot even decipher the name of the witness.

You must then allow up to 6 weeks before probate is granted as the Registrar of Probates has to carefully examine the application.  Sometimes it is quicker, but there is no guarantee.  It takes even longer if the Registrar of Probates is concerned about any aspect of the will (for example, the witnesses did not sign the bottom of each page or the deceased had dementia at the time of death and made the will not long before the deceased died).

We are always reluctant at this early stage to contact the office of the Registrar of Probates complaining about the delay as there is a risk that this might motivate the officer to put the file at the bottom of the pile.

Once we get the grant, it takes 4 to 8 weeks to receive the monies from the banks and financial institutions.  Indeed, last year we had difficulties with AMP, Asgard and OnePath.  Each sat on the executors’ signed applications for months and months and ignored our repeated letters.  There was no reason for the delay (eg, the form not being signed correctly).  They were happy to take the money from the deceased but were a lot slower in returning it! 


“Is there anything I can do to make it quicker to get probate?”
If there is any urgency about the matter, one can make an application to a judge of the Supreme Court for a grant ad colligendum bona.  This is a temporary grant to undertake special tasks pending the grant of probate by the Registrar of Probates.  This costs about $16,000.  Please let us know if this is what you require.  It only applies in cases of genuine urgency in the administration of the estate.

You can help speed the process up by providing:

  • the death certificate;
  • a list of assets and liabilities;
  • the current addresses of the witnesses (if known to you);
  • your driver licence;
  • your current occupation;
  • the current addresses of any other executors;
  • the current addresses of each of the beneficiaries.

“When do I pay the beneficiaries?”
It is prudent for you to hold on to some or all of the estate assets for 6 months from the date probate is granted.  If you distribute the estate within 6 months of the date probate was granted and a claim is made for further provision from the estate within the 6 month period, then you may be personally liable for any amounts the Court requires the estate to pay.  The exception to this rule is that you may make a distribution to the spouse or partner or children of the deceased of all or part of their entitlement under the will for the purpose of providing for their “maintenance, support or education” without any personal liability in the event of a claim by others for provision from the estate.

It would be most unwise to distribute assets until the expiration of 6 months from the date of the grant of probate without first obtaining legal advice.  That is to protect you, the executor, if any claims are made.  See the discussion under the heading “Can anyone claim more?”.  If you do so, and a claim is subsequently made on the estate, there is a risk you might have to pay the award from your own pocket.  As Sir Harry Vaisey, a judge in the Chancery Division of the High Court of Justice in England, explained:      

“I wish to be distinctly understood — I have said it before and I say it again, and I hope some notice will be taken of it — that where an application under the Inheritance (Family Provision) Act 1938 is either pending or impending, that is to say, during the first six months after grant of representation, if it is a case in which there is any risk of such a thing happening, the executor distributes the estate at his risk.  If beneficiaries come and pester him and say that they want their legacies and pressure is put on other beneficiaries to allow these anticipatory payments to be made, in my judgment it is the duty of the executor to resist any such pressure.  I think it must be said that where the court has to deal with a matter under this Act the estate should be there intact.  Of course, duties and debts, and that sort of thing, can be paid — there is no question about that — but no distribution to beneficiaries should be made while there is any possibility or expectation that an application under this Act will be made.”

The law in Victoria says that executors do not have to distribute the estate within 12 months of the death of the deceased. This is known as the executor’s year.

After 12 months, beneficiaries may be entitled to receive interest on the value of their gifts of up to 8% in certain circumstances.

Some wills may require gifts to be held on trust until a certain event occurs (ie until a minor beneficiary reaches a certain age).  In many instances the executor will become the trustee of that money and have to look after it until the specified event occurs.

In other cases, a will gift may be left in a trust for a person’s benefit, rather than being left to them in their own right.  Protective trusts and special disability trusts are examples of such ongoing trusts.

Where property is the subject of ongoing trust obligations, you should discuss this with us.

Some gifts may be left as life interests only, so that the beneficiary is entitled to use the assets but is not free to dispose of them.  For example:

  • the beneficiary who is given a life interest in a house may live in the property but cannot sell the property except in certain limited circumstances;
  • the beneficiary who is given a life interest in shares may have the income from a share portfolio but cannot sell the shares and take the sale proceeds.

When that beneficiary dies, the asset that was the subject of the life interest (ie,  the house or shares, etc) then passes to the beneficiary who was left the “remainder” interest in the will.

You should not make any distribution of an estate if you have received written notification that someone intends to make an application to a court for further provision from the estate.  You need to wait three months from receiving that notice before a distribution can be made, and the distribution can only be made if you has received no further notice that the application has actually been made.  It would be prudent for an executor who has received notice of a claim to conduct litigation searches in the Supreme Court and County Court before deciding to distribute the estate assets.


“What if the estate liabilities exceed the estate assets?”
If there are more liabilities in the estate than assets, then the estate is insolvent.  In this situation, the estate should be declared bankrupt and the remaining assets used by the trustee of the bankrupt estate to pay out the liabilities.  The executor and beneficiaries would not be liable for the shortfall provided that they had not already taken any assets from the estate.
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“How much does it cost?"

"What are the court fees?"

The precise fee will vary on the size of the estate.  The good news is that the application fee for estates less than $500,000 is only $62.20.

The Supreme Court fees are: 

Court filing fee payable to the Supreme Court: under $500,000

$62.20

Court filing fee payable to the Supreme Court: under $1 m

$333.20

Court filing fee payable to the Supreme Court: under $2 m

$622.00

Court filing fee payable to the Supreme Court: under $3 m

$1,362.50

Court filing fee payable to the Supreme Court: over $3 m

$2,103.00


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"My loved one has died.  Both our names are on the title.  What does it cost to put it in my name only?"
If you only need a survivorship application to have your name on the title, we believe that our price is the cheapest in Victoria.

We only charge $315 plus GST to transfer the title into your sole name if you and your deceased spouse were joint owners.  In addition, the Victorian Land Registry will charge you $36.96 and PEXA will charge you $54.01.  You can live there or sell it as you wish.

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"What does it cost to put my name on the title to sell it?"
If you are not the joint owner, we only charge $320 plus GST to put the property into your name so that you can sell the property if you so wish, or as the first step in transferring the property to a beneficiary.  We believe that our price is the cheapest in Victoria.  In addition, the Victorian Land Registry will charge you $40.10 and PEXA will charge you $36.96.

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"What does it cost for an estate without probate?"
For most estates without probate we only charge $895 plus GST.  We believe that our price is the cheapest in Victoria.

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Other prices
Our price for other work depends on the difficulty of the application and the work involved and whether someone is likely to challenge the will or make a claim against the estate.  For probate, the cost is on a sliding scale and for administration it depends on the complexity of the estate and amount of work required to be done.  Send us an e-mail and we can provide you with a quote.

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"What does it cost to get probate for a small estate?"
If the value of the assets of the estate is $111,540 or less, the Supreme Court will prepare a grant of representation for the fee of $118.50.  Unfortunately, the value of most estates exceeds this.

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“Can someone challenge the will?  Can someone claim more?”
Yes, beneficiaries under the will may make a claim for a larger share of the assets.  Also, others not mentioned in the will can make a claim for a share of the assets.

The Court may order that there be a distribution of assets other than as set out in the will if it is satisfied that the deceased had a responsibility to provide for the maintenance and support of the person claiming further provision from the estate and the deceased has failed to meet this responsibility.

In Victoria, the applicant must fall within the definition of an eligible person as set out in the Administration and Probate Act 1958.  Each of the following is an eligible person:

  • a spouse or domestic partner;
  • a child or adopted child or step child or someone who thought they were a child;
  • a former spouse or domestic partner who would have entitled to bring a family law claim but had not or was part way through proceedings;
  • a registered caring partner;
  • a grandchild;
  • a spouse or domestic partner of a deceased child or adopted child or step child or someone who thought they were a child, if they died within one year of the deceased;
  • a person who is a member of the deceased’s household (or had been and was likely to be again in the near future).

The applicant must show that the deceased had an obligation or duty to make adequate provision for them and that this was not done.  There are many factors that the court will take into account when considering these types of applications.  In general, the courts will look carefully at situations where children or spouses of the deceased have been left out of the will or been unfairly treated.  Consideration will be given to the financial circumstances of adult children when they make a claim.  In relation to an eligible person other than the spouse or children, the courts will look at whether there was a dependent relationship with the deceased and what contribution they made to the building up of the estate or the welfare of the deceased.  The courts will consider any written reasons given by the deceased as to why the eligible person was left out or left less than others.

It is a complicated area of law and each matter is judged on its own facts.  You should discuss the matter with us if you have any concerns or suspect that a claim may be brought on this basis.

Anyone wishing to make an application is entitled to do so within 6 months of the date that probate was granted.  If they try to make an application after that time, special permission from the court is required.

“Can I get paid for my work as executor?”
You are entitled to be reimbursed by the estate for any amounts you have paid on behalf of the estate, provided they were appropriate amounts.

You may also receive some payment for your work in the following circumstances:

  • if the deceased sets out in the will that you are entitled to be paid for your efforts.  Usually the will states the rate of payment in terms of a percentage of the total assets and/or income of the estate;
  • where a gift to you is included in the will in lieu of the right to apply to the court for remuneration;
  • if all of the beneficiaries agree on an amount you should be paid from the estate.  Beneficiaries should be encouraged to obtain independent legal advice before agreeing to such a request;
  • if the Supreme Court orders that you are entitled to be paid.

The payment to you is called a “commission” and in Victoria, it cannot exceed 5% of the total value of the estate assets.  When a court considers whether an executor should be paid a commission it takes into account the work done by the executor as well as the responsibility and time involved, often referred to as “the pains and trouble.”  Only in very rare circumstances would the court award 5%.  The maximum rate of 5% is generally reserved for very complicated and time-consuming estates where the pains and trouble were extraordinary.  Generally speaking, the rate of commission awarded would not exceed 3% of the total assets.

Executors wishing to receive a commission should keep extensive records of all they have done in their executorial role to justify the commission.


About us
We have 40 years' experience in assisting people in Melbourne's Outer Eastern Suburbs and the Yarra Ranges getting probate and letters of administration.  We are currently acting for an executor in the Court of Appeal and for executors and beneficiaries in cases in the Supreme Court.




  

 

 






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