A QUICK GUIDE TO PROBATE & ADMINISTRATION OF DECEASED ESTATES
Is there a will?
When a person dies in Victoria, they may have left a will. Lots of people don’t leave wills. If a will has been left, the will appoints some person or persons to act as EXECUTOR or EXECUTORS.
Finding the will
Finding out if a person has left a will can be really difficult. Most people leave their wills in the fireproof safes of the solicitors who make the will. If wills are decades old, those solicitors can have gone out of business and tracing the location of the safe custody packet can be difficult.
Often, we find wills by checking the firms of solicitors who acted on the deceased’s real estate transactions during their lifetime, and tracing the current names and locations of those firms of solicitors.
If no will can be found, and the deceased has left valuable property in Victoria that needs to be disposed of, then some person or persons (usually close relatives) can apply for a GRANT of LETTERS OF ADMINISTRATION.
If there is valuable property in Victoria that needs to be disposed of, and a will has been left, the application is for a GRANT of PROBATE.
Applications for grants of Probate or Letters of Administration are made to an important official at the Supreme Court of Victoria, called the Registrar of Probates.
Grants of Probate and Letters of Administration have the status of court orders.
These grants enable the people appointed to deal with the deceased’s body (funeral, burial, cremation, donation to science etc).
These grants also put the person or persons appointed into the position of the deceased. The grant enables the executors or administrators to collect and/or sell and distribute the assets of the deceased.
If there is a will, the executor or executors distribute the property in accordance with the terms of the will. But they usually wait six months from the date of the grant before doing so.
If there is no will, the administrator or administrators distribute the property in accordance with the next-of-kin provisions in Victoria’s Administration and Probate legislation. Again, they usually wait six months from the date of the grant before doing so. We have acted in relation to some estates where the ultimate recipients had never met the deceased and did not know that they were related to the deceased.
The 6 months
Generally, if you make a will, you can leave your property to whoever you decide to leave it to.
If you die without making a will, the law says that you are regarded as having made a will in accordance with the next-of-kin provisions in Victoria’s Administration and Probate legislation.
But the law also says that a person left out of a will can challenge that will if the deceased owed them a “moral duty” and if they are in financial need. People have 6 months from the date of grant of probate to bring these claims (although the time can be extended).
That is why executors and administrators usually wait out the 6 months.
There are ways around this 6 month waiting period, which are often employed in simple estates where no challenges are expected.
Executors and Administrators who distribute after the 6 months (without notice of claims) are protected under Victorian law. Those who do so inside the 6 months are personally liable for the consequences of their decision.
Urgent matters for Executors and Administrators
There are many, many reasons why executors and administrators have to take urgent action as soon as a person dies.
The most common problem is home insurance. If the deceased has died, and there is no one else living in their home, there are hundreds of different home insurance companies and hundreds of different policies.
Some of these policies provide that the fire insurance on the home ceases within 7 days of the date of the deceased’s death. Other policies are more generous, but it is crucially important for executors and administrators to find these policies among the deceased’s papers and obtain urgent legal advice on them.