Key Takeaways
- The process of managing a deceased person's estate involves obtaining a Grant of Representation from the Supreme Court of Victoria, unless the estate is small (below approximately $113,000).
- The executor's key responsibilities include identifying and valuing assets, settling debts, handling tax matters, filing for probate, managing insurance claims, organizing the funeral, and distributing the estate.
- If no executor is appointed or the named executor cannot act, the court will appoint an administrator, who will take on the same responsibilities.
- The Supreme Court of Victoria issues different types of Grants of Representation based on circumstances, including Grant of Probate, Letters of Administration with the Will Annexed, and Letters of Administration.
- Common estate disputes may involve challenging a Will's validity, family provision claims, and concerns about executor misconduct, which can be resolved through the Supreme Court, Victoria Legal Aid, or the Victorian Civil and Administrative Tribunal.
Dealing with the estate of a deceased person involves a range of legal and administrative tasks to ensure assets are distributed in accordance with the Will or the law. In Victoria, the process requires the executor or administrator to obtain a Grant of Representation from the Supreme Court, except for small estates valued below approximately $113,000 (an amount adjusted annually on the Supreme Court’s website).
This guide outlines the key steps, responsibilities, and legal requirements for managing an estate, as well as options for resolving disputes and obtaining support.
Responsibilities of the Executor
An executor ensures the deceased’s wishes, as outlined in their Will, are fulfilled. Given the complexities of the role, many executors engage legal professionals, with associated costs typically covered by the estate. Key responsibilities include:
- Identifying and valuing assets: Locating and appraising all property, financial accounts, and other holdings of the deceased.
- Settling liabilities: Paying outstanding debts and obligations from the estate’s funds.
- Handling tax matters: Completing and filing any required tax returns for the deceased and the estate.
- Filing for probate: Proving the validity of the Will in court to obtain a Grant of Probate.
- Managing insurance claims: Processing claims for life insurance or other benefits.
- Organising the funeral: Coordinating funeral arrangements and ensuring costs are covered by the estate.
- Distributing the estate: Allocating assets to beneficiaries as specified in the Will.
- Legal representation: Acting in any legal matters related to the estate.
If No Executor Is Appointed
When a Will does not name an executor or the named executor cannot act, the court appoints an administrator. This individual, often the primary beneficiary, assumes the same responsibilities as an executor. The administrator must act in the best interests of the estate and all beneficiaries.
Understanding the Grant of Representation
The Grant of Representation is a legal document issued by the Supreme Court of Victoria that authorises the executor or administrator to manage the deceased’s estate. This grant is essential for:
- Accessing funds in bank accounts and managing investments.
- Selling or transferring real estate.
- Paying outstanding debts and distributing remaining assets.
Executors or administrators must apply to the Supreme Court’s Probate Office and complete the necessary forms to obtain this grant.
Categories of Grants
The Supreme Court provides several types of Grants of Representation, depending on the circumstances:
- Grant of Probate: Issued when the executor proves the Will is valid.
- Letters of Administration with the Will Annexed: Granted if there is a valid Will but no available executor.
- Letters of Administration: Granted when there is no Will or the Will is deemed invalid, typically to the next of kin.
- Limited Grants: Issued for specific purposes or time-limited administration, such as pending legal proceedings.
The Supreme Court’s Role
The Supreme Court of Victoria is instrumental in estate administration, ensuring that disputes are resolved fairly, and legal standards are upheld. If a dispute arises, executors are required to halt all actions until the court delivers a resolution. The Court’s responsibilities include:
- Validate or invalidate Wills.
- Appoint executors or administrators when needed.
- Rule on contested estates or family provision claims.
- Amend or correct errors in Wills.
Common Estate Disputes
Disputes related to deceased estates often arise due to disagreements over the validity of a Will, the distribution of assets, or concerns about the executor’s conduct. Some of the most common disputes include:
- Challenging a Will: Contesting its validity based on claims of undue influence, lack of mental capacity, or improper execution.
- Family provision claims: Seeking a greater share of the estate on the basis that the Will did not provide adequate support.
- Executor disputes: Raising concerns about mismanagement, delays, or misconduct by the executor.
Handling Estate Disputes
Estate disputes can be resolved through various legal channels, depending on the issue. Options for resolution include:
- The Supreme Court of Victoria: Handles adjudication of contested Wills, family provision claims, and executor disputes.
- Victoria Legal Aid: Provides guidance on legal rights and obligations for individuals involved in disputes.
- The Victorian Civil and Administrative Tribunal (VCAT): Manages related disputes, such as those concerning powers of attorney or guardianship.
Key Legislation
The following legislation governs estate administration in Victoria:
- Administration and Probate Act 1958: Governs the administration of estates, including grants of probate and letters of administration.
- Wills Act 1997: Outlines the requirements for making valid wills and addresses related legal issues.
- Trustee Act 1958: Provides regulations for trustees managing estates, including their duties and powers.
- Supreme Court (Administration and Probate) Rules 2014: Establishes procedural rules for probate and administration matters in the Supreme Court.
Resources and Support
For further assistance, consider the following resources:
- Victoria Legal Aid: Provides free legal information, education, and advice for Victorians, including guidance on estate disputes and related issues.
- Supreme Court of Victoria Probate Office: Processes applications for grants of probate and letters of administration and offers resources for understanding probate requirements.
- State Trustees Victoria: Offers will-writing services, estate administration, and support for trustees managing estates.
- Office of the Public Advocate (OPA): Offers advice and advocacy services for issues involving powers of attorney and guardianship.
- The Law Institute of Victoria (LIV): Provides a directory to help you find experienced estate lawyers.
Conclusion
Administering an estate requires careful attention to legal and procedural requirements. Whether you are managing an estate, seeking to resolve a dispute, or require guidance, understanding the legal framework is essential to ensuring the process is handled appropriately.
At Pentana Stanton Lawyers, we offer expert advice and representation in all aspects of estate administration and dispute resolution. Our experienced team is here to provide personalised assistance, whether you need help managing an estate or contesting one. Contact us today to discuss your needs.
