When someone passes away, managing their estate can be a complex and often confusing process, especially for grieving loved ones.
One of the most important legal steps in settling an estate is obtaining a grant of probate.
But what is probate, exactly, and when should you engage a Wills & Estates lawyer near you to assist with the process?
What Is Probate?
Probate is the legal process that validates a deceased person’s will and confirms the executor’s authority to administer the estate.
In simple terms, obtaining a grant of probate gives the executor the legal power to gather the deceased’s assets, pay off any debts, and distribute the remaining assets to the beneficiaries as specified in the will.
Without probate, banks, financial institutions, and other entities may refuse to release assets belonging to the estate.
While probate is generally required when the estate holds significant assets, not every estate requires a grant of probate.
The need for probate depends on factors such as the value of the assets, the type of assets (e.g., property, bank accounts), and whether those assets are held solely in the deceased’s name or jointly with another person.
What Is a Grant of Probate in Victoria?
A grant of probate is a legal document issued by the Supreme Court of Victoria. It formally recognises the executor’s authority to manage and distribute the deceased’s estate in line with their will.
The executor (or executors, if more than one is named in the will) must apply for this grant after the death of the person, provided that the estate requires probate.
Probate essentially acts as the court’s confirmation that the will is valid and the executor has the right to administer the estate.
When Do You Need a Wills & Estates Lawyer in Victoria?
While it is possible for an executor to manage the probate process without legal help, there are several situations where it is wise to consult a Wills & Estates lawyer near me:
1. Complex or High-Value Estates
If the deceased’s estate includes substantial assets, such as multiple properties, including co-owned properties when the other co-owner is alive and resides overseas, other international holdings, businesses or investments, it’s wise to seek legal advice to prevent costly errors.
2. Disputes Over the Will
Sometimes, beneficiaries or other interested parties may contest the will. They might claim that it is invalid due to undue influence, fraud, or lack of mental capacity when the will was made. Or, they may simply make a claim because it does not adequately provide for them and seek to be compensated from the estate.
A Wills & Estates lawyers can ensure that the Deceased’s wishes are carried out in accordance with the terms of their will.
3. Absence of a Will (Intestacy)
If the deceased passed away without a will (referred to as dying intestate), the estate will need to be distributed according to Victoria’s intestacy laws.
In such cases, you will need to obtain a grant of representation and the process can becomes more complicated when there is no clear direction for how the assets should be divided.
A Wills & Estates lawyer can guide the executor or next of kin through the intestacy rules and ensure the estate is distributed fairly under the law.
4. Difficulties in Locating or Collecting Assets
If the estate’s assets are difficult to locate, scattered across various institutions, or located internationally, the probate process can become drawn out and challenging.
A Wills & Estates lawyer near me can assist in tracking down all relevant assets and ensuring they are correctly valued and included in the probate application.
5. Tax and Debt Considerations
Administering an estate often involves paying off outstanding debts, taxes, and liabilities before distributing assets to beneficiaries.
Mistakes in this area can result in legal and financial complications for the executor.
A Wills & Estates lawyer can help navigate legal tax obligations (not provide tax advice) and ensure that debts are settled in accordance with the law, protecting the executor from future disputes or claims.
The Probate Process in Victoria
The probate process in Victoria generally follows these steps:
- Gathering the Necessary Documents:The executor must gather the original will, the death certificate, and details about the deceased’s assets and liabilities.
- Filing for a Grant of Probate:The executor applies to the Supreme Court of Victoria for a grant of probate. This involves filing specific forms and providing evidence that the will is valid.
- Administration of the Estate:Once probate is granted, the executor can collect assets, pay any outstanding debts, and begin distributing the assets to the beneficiaries as specified in the will.
- Final Accounting and Closing the Estate:After the assets have been distributed, the executor provides a final accounting of the estate’s administration and closes the estate.
Engaging a Wills & Estates lawyer near me can simplify the process and ensure that the executor meets all legal obligations.
Why You Should Consult a ‘Wills & Estates Lawyer Near Me’
Dealing with the death of a loved one is never easy, and the legal complexities of administering an estate can add unnecessary stress.
Consulting a Wills & Estates lawyer near me ensures that the probate process is handled efficiently and in compliance with Victorian laws.
A Wills & Estates lawyer can guide executors through each step of the process, ensuring that assets are properly managed, debts are settled, and the estate is distributed according to the will or intestacy laws.
In summary, probate Victoria is a critical legal process when administering estates, and obtaining a grant of probate is essential in many cases.
Whether it’s a complex estate, a contested will, or questions about tax obligations, contacting Tohme Lawyers for legal assistance will ensure that the estate is handled with care and professionalism.