Key Resources

Probate is when the court looks at a Will and determines whether it is valid and whether it’s the last Will of the deceased, in order for the deceased’s wishes to be carried out by the executor named in the Will. The executor ensures debts are paid and remaining assets are distributed in accordance with the Will’s instructions.

• You can’t apply for probate until you have the death certificate

• Only the executor/s named in the Will can apply for probate and they must be over the age of 18

• You may need a solicitor to lodge the probate application to the court on your behalf

• The solicitor will need to know that all named executors in the Will are consenting to the probate application

• If one of the named executors in the Will has died then you also need to supply to the Court the death certificate of that executor

• Financial institutions require an executor to have a grant of probate before they allow access to the deceased’s assets

• The executor should wait until the grant of probate is received to transfer registration of assets into another name e.g. car registration

• In some circumstances you may not need a grant of probate. This may be if the deceased did not own any real estate in Victoria, if they had less than $50,000 in any one bank account and if any shareholdings were valued at less than $25,000

• If the deceased owned real estate outside of Victoria, the executor will need to apply for a grant of probate in that State or Territory as well

• Up to $3,750 for standard probate legal costs

• Up to $5,500 for complex probate legal costs

• $65 to $2,100 for court fees, depending on the value of any property in the estate

• $25 for advertising fees

• $1,000 for property transfers

• $150 to $200 for PEXA and Land Registry fees

• Original death certificate

• Original Will

• 100 points of ID for the deceased, including photo ID

• 100 points of ID for the applicant/s

• Occupation and address for the deceased and applicant/s

• Deceased’s bank account details

• Deceased’s bank balance at date of death

• Original property titles

• Property valuation

• Statement of other assets and liabilities of the deceased and approximate value at date of death

1. Contact a lawyer who is an expert in Wills and Estates

2. Find out the assets and liabilities of the deceased person

3. Obtain the original death certificate

4. Obtain the court’s authority to administer the affairs of the deceased person (Letters of Administration) (lawyer will help with this)

5. Notify authorities about the death (ATO, Medicare, insurers, banks, Centrelink etc.)

6. Arrange and pay for the funeral – the only payment that can come out of a deceased person’s bank account is for a funeral

7. Close off casual subscriptions and memberships

8. Hand in passports and licenses

9. Secure assets and businesses

10. Make sure the spouse and children are provided for via an advance for welfare

• Contact a lawyer who is an expert in Wills and Estates

• Obtain the original death certificate

• Find out the assets and liabilities of the deceased person, and approximate value

• Ascertain the next of kin, who form the beneficiaries when the deceased dies without a Will (intestate)

• Obtain the consent of the majority of the next of kin (who are inheriting the estate) as to who is going to submit the application to the court for the estate to be administered

• Compile a family tree for the court

• Gather evidence to attest to the information in the family tree e.g. evidence of deaths in the family via death certificates, evidence of sibling relationships via birth certificates or probate records

• Obtain the court’s authority to administer the affairs of the deceased person (Letters of Administration)

It is difficult for an executor or attorney to act on behalf of the estate or on your behalf as an attorney if they are located overseas.

The time differences can make it challenging for the person you appoint to meet your needs and organise necessities in a timely manner.

Where an executor is located overseas, the Estate is exposed to several taxes that would not be relevant if the executor was an Australian resident for tax purposes.

If you have no family members in Australia, we recommend that you consider whether you have any friends that you trust and that you think you could appoint, before you look into appointing someone that is located overseas. If you are not able to think of anyone suitable, then you should consider a professional (e.g. lawyer) or a private trustee company but note that such professionals will charge for their time spent for acting in these roles. If these options do not suit you, then you can consider whether your only option is to appoint someone located overseas.

If there is no one in Australia that you are comfortable appointing as your executor (to act on behalf of your Estate) or your attorney (to make decisions on your behalf after you lose capacity), then you may need to appoint someone that resides overseas in the interim until you figure out who is suitable in Australia. When we discuss this with you, we will advise you of what tax implications your estate will be exposed to in relation to the assets you hold.

A power of attorney comes into place upon incapacity.

Our standard documents authorise an attorney to exercise the powers under the document once they receive the first of either the principal’s written instruction to act or upon receiving a written opinion from a medical practitioner that indicates the principal does not have decision-making capacity.

It is possible for a power of attorney to come into place immediately, but we only recommend this type of commencement when it is truly necessary and only in limited circumstances, we are extremely cautious about allowing this commencement because it has the ability to lead to elder abuse and improper use if the power is not exercised correctly.

If you lose capacity, you will not be able to make a power of attorney, this is because you must be clear-minded and have decision-making capacity to be able to appoint a person to make decisions on your behalf.

In the circumstances where you do not have a power of attorney, your family member or close friend will have to apply to VCAT to become your guardian (to be able to make personal and health-related decisions on your behalf) and/or your administrator (to be able to make financial decisions on your behalf).

This process can take a long time and is extremely stressful on families who are trying to navigate what to do when someone close to them has lost capacity, for this reason, we highly recommend that you organise powers of attorney whilst you are clear-minded.

There are three types of powers of attorney, medical, personal and financial.

The medical power authorises an attorney to make decisions on your behalf in relation to emergency medical treatment and routine health care etc.

You can have multiple tiers of people to act on your behalf under this document, but only one person can act at a time.

Next is the personal power, this covers personal and lifestyle decisions such as where you live, who looks after you, who can visit you, what you wear, what you eat etc. You can appoint one person to be your attorney or two or more people to work together at the same time.

Lastly is financial power. The financial power covers legal and financial decisions such as paying your bills, accessing your internet banking, etc. When you appoint your attorney under any of these power of attorney documents, you are authorising them to essentially do anything that you could have legally done whilst you had capacity (within the relevant power).

The appointment for the financial power is the same as the personal power, you may have more than one person working at a time, and in the second instance, multiple people may act as your backup attorneys if your original attorneys are unable or unwilling to act.

An ACD is a form that formalises your medical advanced care plan, it contains directives in relation to your beliefs, values and preferences for what types of medical treatments you provide consent to.

This document is important because it is a legally binding document once signed, and health professionals and your family members must follow what you direct, your decisions cannot be overridden by anyone’s decisions.

If a person has lost the capacity to make decisions, health professionals will firstly look at whether you have an advanced care directive before they provide you with medical treatment. If you have an ACD, then the health professionals will follow your directives contained in the document.

A medical power is different to an advanced care directive because, a medical power authorises a person to make decisions on your behalf, whereas an advanced care directive formalises your consent and preferences for medical treatment.

If you do not have an advanced care directive, the health professionals will ask your medical treatment decision-maker to make the decision for medical treatment on your behalf.

When we provide our clients with final and complete copies of their documents, we also provide business cards so that family members and friends know who to contact in the event of an emergency to let us know the circumstances, so that we can advise them accordingly.

If you believe you are an attorney or an executor for someone and are unsure whether it is time to act, please contact our office and we would be happy to advise you on what your next steps of your respective roles will involve.

Your original documents, once signed, will be held at our office on your behalf. Your executors or attorneys will know how to retrieve them because in our final correspondence to you, we will enclose numerous business cards which you can distribute to your family so they know who holds your documents and who to contact.

The Administration and Probate Act 1958 outlines persons who are eligible to contest a Will, in certain circumstances. The eligible relationships to a deceased person who may bring a claim include a spouse or domestic partner (including former spouse or domestic partners), child (including adopted) or step-child, an assumed child, a registered carer, grandchildren, a spouse or domestic partner of a child of the deceased, or a member of the deceased’s household.

If the court is satisfied that someone is an eligible person, they will determine whether the claimant was a dependant on the deceased for proper maintenance and support and whether the deceased had a moral duty to provide for the claimant.

We recommend that you appoint someone that you trust, who you are close with and that you believe would carry out their obligations in your best interests.

In particular, for your medical attorney, we recommend appointing the person that would usually be by your side if anything were to happen to you.

As a beneficiary under a Will, you are entitled to receive a copy of the Will upon request.

Information will only be provided to a beneficiary if it has been approved by the executor of the Estate. Beneficiaries who are to receive a share in the residuary Estate ought to be provided with a statement of the assets and liabilities of the Estate so that they are aware of their entitlement under the Will.

We recommend that the executor maintain an open and honest relationship with the difficult beneficiary, and to maintain regular communication to ensure that the beneficiary feels involved and understands how the Estate is progressing. If the beneficiary continues to be very difficult or if proceedings are initiated against you, we recommend you seek legal advice as soon as possible.