1 min read
02 Jun 2022
When someone passes away there is a legal process involved to settle their affairs. This legal process differs depending on whether the deceased had a Will or not.
If the deceased had a Will the process is more structured and clearer.
If the deceased did not have a Will the process is more complicated, and distribution of the estate can be challenging.
If the deceased has a Will the executor(s) of the Will need to make an application for a Grant of Probate (Probate). Probate is an order from the Court which authorises the executor(s) to distribute the deceased’s assets in accordance with the provisions of the Will.
An application for Probate is prepared and filed in court. A Probate lawyer prepares the application and files the application in court. The Court requires a range of documents to support the application which are typically:
Your lawyer will check that the requirements for Probate to be granted are met before filing. If the court requires any further details, they will handle these queries as well.
Once Probate is granted the executor can start to arrange the assets for distribution in accordance with the terms of the Will. Assets can vary significantly, but the main assets are Real Property, shares, motor vehicles and cash at bank. Each asset holder will require a copy of Probate and the Death Certificate before they will release the deceased’s assets to the executor.
Prior to final distribution of the estate there is a 6-month timeframe after Probate is granted where certain relatives or dependants can make a claim for part of the estate. Contesting a Will is not uncommon and if the Will has not been prepared well it may give rise to more claims.
Once all the assets of the deceased have been realised by the executor, the estate can be distributed. Normally this process involves selling all of the assets of the deceased and distributing the sale proceeds to the beneficiaries under the Will.
In some instances, the executor may decide not to sell some assets such as Real Property but change the ownership details and divide the ownership amongst the beneficiaries proportionate to their entitlements in the Will.
If the deceased did not have a Will when they passed away, someone (usually the next of kin), needs to make an application for a Grant of Letters of Administration (Letters) with the Supreme Court of Victoria.
Letters is an order from the Court with authorises the Administrator to distribute the deceased’s assets in accordance with the law.
The main difference between Probate and Letters is how the estate is distributed. As the deceased did not leave a Will there are no nominated beneficiaries.
The law determines how the estate is to be distributed and generally it is as follows:
How the estate is distributed in Letters is tricky and challenging. Therefore, it is always advisable that someone has a Will so to avoid your assets being distributed to individuals you did not choose yourself.
Executor(s) or administrator(s) of an estate have a range of legal duties on them when administering the estate of a deceased person.
Some of the duties of an executor/administrator are to:
Executor(s) and Administrator(s) can, in rare cases, face personal liability to the beneficiaries for not administering and distributing the estate in accordance with the law.
If you are the executor of a Will of someone who has recently passed away our team of experts in Wills & Estates can help you manage the estate in a stress free and straightforward manner.
Our wills and probate lawyers are experienced in assisting you in the drafting and execution of your Will. AT PCL lawyers, we are experienced in helping beneficiaries and executors throughout the process of Probate and provide clear and practical advice.
If you are unsure about whether you need a Will or what type of Will you might need we can help advise you as to what will suit your needs.
If you have any queries after the legal processes after the death of a loved one speak to one of our lawyers today on 1300 907 335.
Disclaimer: This article has been prepared for general information purposes and may not apply to your situation. This information should not be relied upon for legal, tax or accounting advice. Your individual circumstances will alter any legal advice given. The views expressed may not reflect the opinions, views or values of PCL Lawyers and belong solely to the author of the content. © PCL Lawyers Pty Ltd.
If you require legal advice specific to your situation please speak to one of our team members today.
Philip is a Senior Associate and leads the Wills and Estates practice group at PCL Lawyers. He advises clients across a wide range of complex estate planning matters, the administration of deceased...
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