Deceased Estates – Grant of Probate & Administration
When a Will is created, an Executor is usually nominated within the Will. This may be a relative, spouse, close friend to the deceased person that they trust to carry out their wishes.
The power to deal with a deceased person’s estate does not automatically pass to the Executor. In most cases, before an executor can deal with a deceased person’s property and assets, they must first obtain a Grant of Representation from the Supreme Court of Victoria.
A Grant of Representation may be in the form of:
- Grant of Probate (when there is a legal Will), or
- Grant of Letters of Administration (when there is no legal Will).
- Grant of Letters of Administration with Will annexed (when there is a Will but no Executor).
What is Probate?
A probate is a legal step, via the Supreme Court, to process the existence and validity of the Will.
This process confirms the appointment of the Executor(s) and to ensure the Executor;
- is alive
- is willing and able to carry out the tasks stated in the Will
It also confirms that it is the last, legitimate Will from the deceased person.
When is Grant of Probate required?
Once the Courts deem the Will to be valid, a Grant of Probate is then issued to the Executor(s), who can fulfil the wishes expressed from the deceased in his or her Will.
When is Letters of Administration required?
When there is no Will, a Grant of Letters of Administration is required.
This is due to no person being nominated to administer the deceased’s estate. Therefore, the estate is subject to the intestacy rules under the Administration and Probate Act 1958 (VIC).
Letters of administration is granted after the court has examined relevant documents and is satisfied the person named in the grant is authorised to administer the estate.
The person named is usually the next of kin, such as a spouse or adult son or daughter to take on the role of administering the deceased’s estate.
When is Letters of Administration with Will annexed required?
A Grant of Letters of Administration (with Will annexed) is required if a valid Will fails to:
- Appoint an Executor or
- The named Executor in the Will is also deceased
- The named Executor no longer wants to act in that role
The person who benefits most under the Will has the right to apply for a Grant of Letters of Administration (with Will annexed), however the distribution of the estate is governed by the Will and not intestacy rules.
In the above circumstances, we assess the complexity of the estate and offer the best course of action to take.
How to obtain a Grant of Representation
When a person passes away, there are steps in the process to ensure the Will is administered appropriately.
It is highly recommended to seek legal advice before obtaining a Grant of Representation and administer a deceased estate. Speak with a lawyer if the estate involves items like:
- Property being in their name only and not jointly owned
- bank accounts
- If superannuation death benefit is payable to the estate
- Banks or other financial institutions require a Grant to be obtained to close the deceased’s bank accounts
- Other assets worth a significant amount of money
Legal Duties as an Executor or Administrator
The Administration and Probate Act specifies certain legal duties and obligations an Executor and Administrator needs to abide by when administering a deceased’s estate. These include:
- Locating all assets and liabilities
- Organising funeral services
- Notifying relevant authorities
- Obtaining a Grant for Probate from the Supreme Court
- Paying outstanding debts generated by the deceased person
- Arranging tax returns
- Retrieving life insurance
- Notifying beneficiaries
- Distributing the estate in accordance to terms of the Will or intestacy laws
- Resolving disputes
The Executor or administrator have a duty of care to act in the best interests of the beneficiaries of the estate at all times.
If there is a claim made against a deceased’s estate, the Executor or administrator will be represented as the defendant to the claim.
Reimbursement to Executors or Administrators to the Will
An Executor or administrator will be entitled to reimbursement from the estate for all costs incurred in obtaining a Grant of Representation.
This also includes any reasonable expenses for administering the estate, such as legal costs.
Unless the right to charge commission is specified under the Will, an Executor may not charge the estate for their time or personal costs.
For more information, contact Mackinnon Jacobs Lawyers. Our team of experienced lawyers can assist you with Wills, Probate and Estate litigation and help with the process of obtaining a Grant of Representation for administering the estate.
Would you like to know more?Contact our Wills and Estate expert Brian Irving on 1300 424 452 to receive personalised advice about your case.