Probate and Deceased Estates

What is Probate?

A Grant of Probate (also known as a Grant of Representation) is recognised as being the Supreme Court’s confirmation of both the deceased’s last Will and the Executor’s appointment.

When is Probate necessary?

In all Probate matters, it is most important to determine whether it is necessary to obtain the Grant. This is an important consideration as the cost of obtaining the Grant can be substantial (especially as some firm’s quote legal fees for obtaining the grant similar to the cost of a funeral).

A Grant is necessary if the administrators of an estate asset, such as a bank or the Land Titles Office, require the production of the Grant before agreeing to release the funds or effect any dealings with land.

If the Grant is obtained, an important protection afforded to the Executor is that in the event the executor acts in good faith, but the Grant is later revoked (for example if a later Will is found), then the Executor is protected from incurring any personal liability.

In Victoria, anyone wishing to challenge the Will, thereby claiming further provision from the estate, must do so within 6 months of the date the Grant is issued by the Court. Claims commenced outside this time can only commence once the claimant has sought special permission from the Court. By obtaining a Grant the Executor commences the 6 month claim period, providing the estate with greater certainty as to when the distribution of estate assets can occur.

In New South Wales, the date by which claims are required to be filed without requiring special leave from the Court is 12 months from the date of the deceased’s death.

What are the costs of Probate?

Border Wills and Probate charges a set fee for the following three items of work which together comprise the majority of the legal work:

• Obtaining the Grant of Probate from the Supreme Court
• Advising the Executors as to their rights and responsibilities
• Dealing with the estate assets and administering the estate generally.

The fees which are charged depend upon the following factors:

• The value of the estate
• The complexity of the estate
• The relationship between the Executors and beneficiaries.

A simple estate which includes one Executor, an estate asset which is a residential home and adult children beneficiaries, requires less time to complete than an estate which involves three Executors who do not work well together, an estate asset which includes an active business and potential claimants from disappointed beneficiaries.

Our Probate lawyers also consider whether the Executors wish to administer the estate themselves. Border Wills and Probate enjoys working with Executors who wish to conduct part or all of the estate administration themselves.

From the feedback received from our clients, our fees are often half that charged by other firms.

How long does it take to obtain the Grant?

Border Wills and Probate seeks to meet a bench mark standard by obtaining a Grant of Representation from the Supreme Court within 4 weeks of the production of the deceased’s Death Certificate. This is quite often achievable when the executors are diligent.

This standard demonstrates the focus of our firm being Wills and Probate matters. We are aware that many firms do not provide such a focus, which means that Grants are not obtained for up to 6 months after the receipt of instructions.

The clients of Border Wills and Probate receive regular updates as to the progress of their matter, providing our clients and the estate beneficiaries with the peace of mind that their matter is being handled efficiently.

What are the responsibilities of the Executor?

The Executor’s position is serious and should not be undertaken without careful consideration.

The Executor holds a position of trust and is required to act in the interest of the estate and the beneficiaries. It is important that the Executor act upon professional advice as financial losses unnecessarily incurred by the estate may create a personal liability for the Executor.

What are the rights of the Executor?

An executor has the right to be reimbursed for all expenses from the estate’s assets. This right of indemnity is only available to the Executor if the Executor has satisfied their obligations.

An Executor has the right to arrange the deceased’s funeral.

An Executor may also be entitled to apply for an Executor’s commission for his or her ‘pains and troubles’ during the administration of the estate. The amount which an Executor may be entitled to must be assessed carefully and such assessment considers any provisions in favour of the Executor received from the Will, the value of the estate and the time required by the Executor to complete the role.