Probate & Estate Administration

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When a person dies and they have a Will, the executor(s) will need to apply for a Grant of Probate to undertake their duties of distributing the assets of the deceased. When a person dies without a Will, an administrator is appointed and they will need to apply for Letters of Administration to undertake their duties.

A Grant of Probate and Letters of Administration are collectively known as a Grant of Representation and allow for the same tasks to be completed; money of the deceased held in banks or shares to be collected, property sold or transferred and debts to be paid.

The grant is proof to any individual or any organisation (for example banks, motor vehicle registration etc) wishing to see it that the person named in the grant is entitled to collect and distribute the estate of the deceased.

Role of an executor or administrator

It is important that an executor or administrator understands the roles and responsibilities they have in relation to the estate.

The executor or administrator will need to:

  • arrange the funeral and/or burial;
  • collect the assets of the estate and preserve them for the benefit of the beneficiaries; ascertain and pay the debts of the deceased;
  • keep proper accounts and records;
  • ensure the deceased’s tax affairs are dealt with; and
  • distribute the estate amongst the beneficiaries who are entitled according to the Will or Rules of Intestacy.

They will also need to deal with any challenges made to the deceased person’s Will or estate.

Grant of Probate

Probate is the process of officially proving the validity of a Will. That is, establishing the validity of the Will as the last Will of the deceased.

The executor of a person’s Will is the person who makes the probate application. The application is made to the Supreme Court of Victoria. As part of the application, the executor will need to provide the court with the Will and death certificate of the deceased, as well as a list of the assets and liabilities of the estate.

Letters of Administration

If a person dies without a Will or any Will made is not valid, the court issues a Grant of Letters of Administration.

It most cases the grant is made to the next of kin of the deceased.

Is a Grant of Probate or Letters of Administration necessary?

A Grant of Probate or Letters of Administration may not always be necessary and an executor should consider whether or not to administer the Will or Estate without a grant if a grant is not required. This will depend on the nature of the assets and the requirements of companies holding the assets.

You will certainly need probate if the deceased had real estate in their sole name, a significant shareholding or a considerable amount in a bank account. It is also likely you will need probate if the deceased has a refundable accommodation bond that is payable to their estate. 

You may need particular advice if there are problems with the Will, including how it was signed; for example,  it is evident the witnesses and testator have signed the Will using different pens, there are holes or marks on the Will or not all pages of the Will have been signed.

There may be other errors such as incorrect spelling of names or the executor or one of the beneficiaries may have died before the deceased. This raises questions as to who should be applying for a Grant of Probate in that person’s place and what is to happen to a deceased beneficiary’s share.

The deceased may have married or divorced since making the Will, raising questions as to whether the Will has been revoked or whether the former spouse still retains a benefit under the Will. You may not get along with a co-executor about how an estate should be administered or there may be an informal testamentary document and you are unsure whether you need to produce it.

We provide an obligation free discussion and our lawyers will help you to understand whether or not a grant is required and discuss your particular circumstances.

Get help

The process of obtaining a Grant of Probate or Letters of Administration can be daunting if you are an Executor of a Will or next of kin of someone who has died without a Will.

At Emera Smith, we can help you to understand the roles and duties of an executor or administrator to ensure you are carrying out and fulfilling those duties and obligations in the way that you should.

If you wish to proceed, we can arrange a meeting to provide advice and discuss the steps that need to be taken. We will collect all relevant information and documents from you, including the original Will and Death Certificate, a list of assets and liabilities and where possible, documents relating to those assets and liabilities. 

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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