Estate & Probate Lawyers Geelong & Melbourne
The loss of a loved one is always a difficult time. Our team has the experience and knowledge to assist your family during this time of grief and will work alongside your family to guide you through the estate administration process when a loved one has passed away.
What is estate administration?
Estate administration refers to the process of collecting and gathering the assets of the deceased, paying all debts and liabilities, and distributing the remaining assets in accordance with the Will of the deceased or laws of intestacy (if there is no Will).
What is a deceased estate and what assets form part of the estate?
A deceased person’s estate includes assets that are owned or held solely by the deceased person. Common estate assets include:
- Real estate owned solely by the deceased or owned as tenants in common by the deceased and another person;
- Bank accounts;
- Motor vehicles, boats, trailers, caravans and motorbikes;
- Insurance policies payable to the estate;
- Unpaid salary/wages, annual leave and long service leave;
- Household and personal effects;
- Loans or credit cards;
- Superannuation benefits payable to the legal personal representative.
What is a Grant of Probate?
A grant of Probate or probate is an order from the Supreme Court of Victoria stating that the Will is proven to be valid and is the last known Will of the deceased person. The document confirms that the executor/s named in the Will is the person with authority to act as a legal personal representative of the estate of the deceased.
A grant of Probate is required for most deceased estates, particularly where there is real estate or accounts/investments above the value of $30,000. The holding institution (bank, Titles Office) will require a copy of the grant before accepting the authority of the executor to deal with the asset. The application process takes approximately 4-6 weeks.
What is a Grant of Letters of Administration?
A grant of Letters of Administration is an order from the Supreme Court of Victoria appointing a person to act as a legal personal representative of the estate when there is no Will.
It is also an order made when there is a Will but the executor named in the Will is unable to act or has predeceased the deceased. In such instances, the grant is known as a grant of Letters of Administration with the Will annexed.
This grant will be required before the assets of the deceased person can be dealt with, and the application process takes approximately 4-6 weeks.
Who is the Executor or Administrator?
The executor is the person appointed under a valid Will.
Where there is no valid Will the person who has largest entitlement to the estate, in accordance with intestacy laws, can apply to the Supreme Court to be appointed as the administrator of the estate.
The intestacy laws set out how the estate is to be distributed amongst the next of kin if the deceased did not have a valid Will.
For a guide as to who will inherit an Estate under Victorian Law, click on the image below to find out more:
What is the role of the Executor or Administrator?
The role of the Executor or Administrator includes, but is not limited to:
- Arranging the funeral;
- identify all assets and liabilities of the estate;
- obtain a grant or probate or letters of administration (if applicable);
- take control of and collect all of the assets which may include selling assets;
- pay any liabilities including the funeral account, legal fees, tax, secured and unsecured creditors; and
- Distribute the estate to the beneficiaries in accordance with the terms of the will (if there is a will) or the laws of intestacy (if there is no will).
Is an Executor entitled to commission?
Generally speaking, an Executor is entitled to claim all costs and expenses incurred in administrating the estate. However, unless it is stated in the Will or the beneficiaries all agree, the Executor is not entitled to be paid a commission (percentage of estate assets) from the estate.
The Executor however, can apply to the Supreme Court for a commission up to 5% of the value of the estate.
Is a Grant of Probate or Letters of Administration always required?
Not all deceased estates require Probate or Letters of Administration. Often it will depend on what assets have been left behind by the deceased, and the requirements of institutions holding those assets.
However if the deceased owned real estate or land in Victoria, a grant of Probate or Administration must be obtained before conducting any dealing with the real estate.
If you are unsure about whether you need to apply for Probate or Letters of Administration please seek legal advice from our experienced team.
Rights of the beneficiaries
Beneficiaries of a Will who are entitled to a portion of the residuary estate, are entitled to a copy of the Will, statement of assets and liabilities and annual accounts.
On the other hand beneficiaries of a specific gift only are often not entitled to general information regarding the estate.
What is the cost of administering an estate, and how is it paid?
The cost of administering an estate will vary significantly depending on the complexity of the estate, including the number and type of assets, number of beneficiaries, and whether a person seeks to challenge the Will. Our professional fees for estate administration start at $3000.00 plus GST and disbursements to obtain a Grant of Probate or Letters of Administration, however we provide a tailored cost disclosure to all executors upon gaining an understanding of the details and complexity of each specific estate.
The costs of estate administration are generally paid from the funds of the estate, not by the executor/s.
What if I don’t agree with the Will?
Click here to read more about Contesting a Will and Estate Litigation.
How we can help
We provide expert, tailored and timely assistance in estate administration, which can often be a complex process. Our team of expert lawyers and probate clerks will work alongside you through this process to ensure that your loved one’s Will is administered properly and efficiently, and that all your duties and obligations as an executor are met..
Thank you again for everything and we will not hesitate in recommending your services to others.