At Argent Law, our Will Lawyers are able to help you with all matters that may arise in relation to a deceased Estate as follows:
At Argent Law, our Will Lawyers are able to help you with all matters that may arise in relation to a deceased Estate as follows:
If you are the Executor of a Will, you will be responsible for the administration and distribution of the deceased’s estate in accordance with the deceased’s Last Will and Testament.
It is a very confusing time for Executors as from 1 November 2017, there was new legislation that came into force in Victoria that governs Estates when the deceased’s Last Will and Testament was prepared on or after 1 November 2017.
For all Estates, when the last Will and Testament of the deceased was prepared before 1 November 2017, the older legislation applies to the distribution of the Estate.
This means that there are two different laws running concurrently and it is vital that the Executor obtains legal advice to assist them and ensure that the correct Act is being applied to the distribution of the Estate.
In addition to the Administration and Probate Act 1958 (Vic) and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 there are numerous legal obligations imposed of the Executor, including but not limited to the following:
The role of an Executor can be very time consuming, especially when there is a large estate with numerous assets. Most people are unaware that an Executor can be entitled at law to a commission or fee.
If you are an Executor of a Will that was made before 1 November 2017, the Administration and Probate Act 1958 applies to you. Section 65 states that the Executor can seek a commission not exceeding 5% for the “pains and trouble” of administering the deceased’s Estate as is “just and reasonable.”
It is vital that the Executor seeks advice as to what is “just and reasonable,” namely the recommended percentage for the works undertaken by the Executor and the process required to obtain a commission. There are several relevant cases that are applicable to claiming an Executor’s commission that need to be considered.
If you are an Executor of a Will that was made on or after 1 November 2017, the new legislation, Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 amends the existing law in relation to Executors charging fees and commissions for Wills made on or after 1 November 2017.
If the Will has a remuneration clause for the Executor, the Executor is not entitled to payment unless:
What is deemed “written informed consent” has not been ascertained as yet, as this has not been tested in the Supreme Court.
Therefore, it is more important than ever, that Will makers seek legal advice and have their Will prepared by a lawyer in order to try and circumvent future issues with the Will.
In the event that the Will maker does not leave a clause or direction as to payment of an Executor’s commission (post 1 November 2017), the Executor needs to seek consent of the interested beneficiaries for renumeration and failing same, the Executor needs to make an application to the Supreme Court for the determination of renumeration.
If you are an Executor we can assist you with your roles and duties and in the event you seek a commission or renumeration for your role, legal advice is mandatory given the two different legislations that run concurrently from 1 November 2017.
Creating a Will
Contesting a Will in Victoria, also known as challenging a Will, can only occur in the following circumstances:
the Will maker did not have the capacity to make a Will at the time they signed the Will (“Testator capacity issues”);
the Will was made under the influence of others (“undue influence”); or
the deceased person failed to comply with their duty to adequately provide for you on their death by leaving nothing, or not enough to you in their Will (“Part IV Testator Family Maintenance Claims”).
The legislation in this area has significantly altered as of 1 January 2015, and the ability to make a Testator Family Maintenance Claim has significantly diminished.
The Supreme Court of Victoria can (and has) award you and/or your lawyer to pay the legal fees and costs of the Estate in circumstances whereby you should not have made a claim.
You must seek legal advice to ascertain if contesting an Estate is an option for you, noting that you only have six months from the date of the grant of Probate to make a claim.
When it comes to family, we handle every case with unmatched professionalism and care. We strive to work towards the best possible outcome for you and your family and can assist with legal issues such as parenting plan and support, issues of domestic violence, de facto relationships and more. For more information on any of these laws and services, talk to one of our lawyers today. As experienced family lawyers, we approach each case rationally and are here to support you. We pride ourselves on our years of experience in complex matters – including matters concerning the personal safety of parties and children and large and complex property holdings between the parties (asset pools over $20,000,000). With a dynamic team and a passion for helping people of all walks of life, you can count on our team when the going gets tough.
To learn more about the legal areas our family lawyers can help you with, or to understand your current legal standings; arrange an appointment today. You can also browse our website to learn more about our other services or call us for more information on (03) 9571 7444.
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