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Argent Law

2 Stawell Street, Melbourne (Richmond) VIC 3121 (03) 9571 7444
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Administration and probate of a deceased estate

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:

  • Grants of Probate;
  • Grant of Administration with Will annexed (person dies with a Will but Executor is already deceased or named Executor wishes to renounce);
  • Grant of Administration of intestate estate (person dies with no Will);
  • Executor’s Commission;
  • Assistance with the distribution of the Estate including identification of the assets and liabilities of the deceased;
  • Survivorship Application (transfer of property held as joint proprietors to the surviving proprietor);
  • Application by Personal Legal Representation (transfer of property held by the deceased to the Executor/s as legal person representative); and
  • Contesting an Estate.

 

What happens if you are the Executor of a Will?

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 is new legislation that comes into force in Victoria that governs Estate’s when the deceased’s Last Will and Testament was prepared on or after 1 November 2017.

For all Estate’s, 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 is 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:

  • Provision of the Last Will and Testament of the deceased to the named beneficiaries;
  • Organisation of the deceased’s funeral;
  • The real property of the deceased vests with the Executor which means you need to ensure it is insured, maintained and kept in the same condition;
  • Make an oath to the Supreme Court as to the inventory and accounts of the deceased’s Estate;
  • Distribution of the Estate in a timely manner (usually 12 months from the grant of Probate);
  • Attend to payment of payment of the deceased’s debts and liabilities from the Estate;
  • Attending to filing a tax return on behalf of the Estate and seeking advice as to the applicability of capital gains tax;
  • In most cases the sale of the deceased’s assets which includes hiring a real estate agent and preparing the property/properties for sale; and
  • In some cases investment of the deceased’s assets for infant beneficiaries.

Executor’s Commission

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 is several relevant cases that are applicable to claiming an Executors 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:

  • the testator gave written informed consent to the inclusion of the remuneration clause; and
  • that written informed consent was given by the testator before the will was executed.

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 Executors commission (post 1 November 2017), the Executor needs to seek consent of the interested beneficiaries for remuneration and failing same, the Executor needs to make an application to the Supreme Court for the determination of remuneration.

If you are an Executor we can assist you with your roles and duties and in the event you seek a commission or remuneration for your role, legal advice is mandatory given the two different legislation’s than run concurrently from 1 November 2017.

 

Contesting a Will

Contesting a Will in Victoria, also known as challenging a Will, can only occur in the following circumstances:

  1. the Will maker did not have the capacity to make a Will at the time they signed the Will (“Testator capacity issues”);
  2. the Will was made under the influence of others (“undue influence”); or
  3. 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.

Fill out the form aside and our will lawyers Melbourne will get in touch with you to discuss your case.

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