Probate & Deceased Estates Lawyers, Melbourne

Probate and estate administration

When a person dies, the legal authority to deal with their assets does not pass automatically. It must be conferred by the Supreme Court of Victoria through a grant of representation — either a grant of probate to the executor named in a valid will, or letters of administration where there is no will or no executor able and willing to act. The grant is the document that asset holders, including banks, share registries, Land Use Victoria and aged-care providers, will require before releasing or transferring assets.

The administration that follows the grant is governed principally by the Administration and Probate Act 1958 (Vic), the Trustee Act 1958 (Vic) and the will itself. Our role is to obtain the grant promptly and to guide the legal personal representative through the steps that follow: identifying and collecting assets, paying debts and tax, accounting to beneficiaries, and distributing the estate in accordance with the will or the rules of intestacy.

When probate is required

Probate is required where the deceased held assets in their sole name that exceed the threshold each asset holder applies, or where real property is held solely or as tenants in common. Jointly held property and joint bank accounts generally pass to the surviving joint owner by survivorship and do not form part of the estate for probate purposes; superannuation usually does not either, although there are important exceptions discussed below.

Most major Australian banks now require probate for balances above a relatively modest threshold (commonly between $20,000 and $50,000, but the figure is set by each institution). Land Use Victoria requires either a grant or, in some cases, a transmission application supported by a grant to register a transfer of solely held land. We assess the estate at the outset and advise whether a grant is necessary, whether a small-estate process is available, or whether the matter can be resolved by transmission to a surviving joint proprietor.

Letters of administration

Where the deceased left no will, or the will did not appoint an executor able and willing to act, the Supreme Court grants letters of administration. The persons entitled to apply are determined by the priority set out in Order 7 of the Supreme Court (Administration and Probate) Rules 2014 (Vic), in conjunction with the intestacy rules in Part IA of the Administration and Probate Act 1958 (Vic). In an intestacy, the spouse or domestic partner takes the statutory legacy and a share of the residue, with the balance to children — with adjustments where there are children from another relationship and where the partner elects to acquire the family home.

Letters of administration with the will annexed are granted where there is a valid will but no executor able to act (for example, where the named executor has predeceased, renounced or lacks capacity). We advise on entitlement to apply, prepare the renunciations and consents required, and conduct the application.

Executor and administrator responsibilities

An executor or administrator is the legal personal representative of the estate and holds the estate's assets on trust for the beneficiaries. The role carries personal fiduciary obligations and, in practice, the following responsibilities:

• Asset collection — identifying, valuing and taking control of bank accounts, shares, managed funds, real property, motor vehicles, business interests and personal effects.
• Debts and liabilities — calling for creditors, paying funeral and administration expenses, settling secured and unsecured debts, and arranging income-tax returns to date of death and for the estate period.
• Beneficiary distributions — making interim and final distributions, paying specific legacies, and accounting to the beneficiaries for the administration.
• Trust administration — where the will establishes a testamentary trust, taking up office as trustee and managing the trust in accordance with its terms and the Trustee Act 1958 (Vic).
• Protective notices — advertising the intended distribution under section 33 of the Trustee Act 1958 (Vic) and observing the six-month period under Part IV of the Administration and Probate Act 1958 (Vic) for family-provision claims before distributing.

We advise the personal representative throughout, prepare the accounts, and where appropriate seek the beneficiaries' approval of the administration so the role can be brought to a clean close.

Complex and high-value estates

Larger estates rarely consist only of bank accounts and a family home. Many include a closely held business, units or shares in a family trust or company, a self-managed superannuation fund, or real property held across more than one jurisdiction. Each of these raises questions that probate practice has to answer carefully.

• Business and company interests — valuation, transfer of shares under the company constitution and any shareholder agreement, continuity of the role of sole director, and orderly transition to a successor or purchaser.
• Family trusts — the trust assets are not part of the estate, but the deceased may have controlled the trust as appointor or as a director of the trustee. Succession of control is governed by the trust deed and must be addressed before, not after, the grant.
• Superannuation death benefits — the trustee of the fund pays in accordance with the deed, the SIS Act and any binding nomination. Where the benefit is paid to the estate, it forms part of the residue and is distributed under the will; where it is paid direct to a dependant, it bypasses the estate entirely. We work through the tax position (the taxable component paid to non-tax-dependants) and the treatment of any associated life-insurance proceeds.
• Real property in deceased estates — we attend to transmission applications at Land Use Victoria, transfers to beneficiaries, sales of estate land, and the discharge of mortgages and caveats.
• Estate disputes — claims for further provision under Part IV of the Administration and Probate Act 1958 (Vic), challenges to the validity of the will, executor disputes and applications for the removal or substitution of a personal representative. We act for both estates defending claims and individuals making them.

How Hanlons assists

We act on the full range of deceased-estate work — from straightforward grants for estates with a single property and a bank account, to complex administrations involving businesses, trusts and contested claims. Initial conferences are conducted in our Collins Street office or by telephone or video. We discuss scope and fees at the outset, in writing, and we are conscious that an estate cannot bear open-ended legal cost. Most uncontested grants are obtained within four to eight weeks of receiving instructions and the original will, subject to the Court's current list and to the responsiveness of asset holders.

What to bring

• The original will and any codicils, plus any earlier wills you can locate.
• The original or a certified copy of the death certificate.
• Photographic identification for the proposed executor or administrator.
• A list of known assets and liabilities, with recent statements where available.
• Title searches, rates notices or certificates of title for any real property.
• Superannuation fund details, including any binding death benefit nominations.
• Trust deeds, shareholder agreements and company constitutions for business interests.
• Names, addresses and dates of birth of the beneficiaries and immediate next of kin.

Related services

Probate work is closely connected to our wills and estate planning practice — many of the estates we administer have been planned by the firm, and the experience of administration informs the way we draft. To discuss a specific estate, please contact our office.