Legal Kits . . .

Making it as simple as  1-2-3

About us  |  Contact  |

 

Walk the proven path

built over a 30 year period 

by the legal kit Originators

The Probate Kit

This is essentially a summary page, and in places it repeats what we have said elsewhere on this website.

Probate Questions & Answers (Victoria Australia)

This page is a long one that answers many of the questions that people have about deceased estates.

  • What is Probate?
  • Do I need it?
  • How do I get it?
  • What does it cost?
  • How long does it take?
  • What if there is no Will?
  • What are Letters of Administration?
  • Can I still use a Power of Attorney?
  • What does an Executor do?
  • What if there is no Executor?
  • What happens to assets when someone dies?
  • Are bank accounts "frozen"?
  • What happens to the house?
  • What happens to the car?
  • What happens to my social security benefits?

 

The Will

Your Will says what should happen to your assets, and who you want to handle things for you. Your executor must locate the original Will, which is often amongst your personal papers, or perhaps in a bank safety deposit. If a solicitor is holding your Will they should simply give it to your executor (after they provide identification). When your executor gets your Will they should not write on it, staple anything to it, or even clip anything to it. They should keep it as they found it.

Probate

A "Probate" is a certificate in which the Probate Office officially recognises the executor named in the Will.

The Role of the Executor

There is an old saying that the executor "stands in the shoes" of the person who has died and looks after their estate for them. The executor's role varies with the type of estate of course, but in general the executor:

  • Finds the Will and checks to see who it appoints as executor
  • Digs out details of assets and debts
  • Applies to the Probate Office for "Probate"
  • Arranges for asset holders (such as banks) to hand over the assets
  • Pays any outstanding taxes and debts, and then
  • Distributes the estate to the beneficiaries named in the Will. The Executor might also arrange transfer of real estate.

Does the Executor need to apply for Probate?

Executors usually apply for Probate only if they have to, and that depends on whether the asset holders insist on it as a condition of releasing the asset.

If all assets are "jointly" owned then Probate may not be necessary at all. The family home is often jointly owned, and you can check this merely by looking at the Certificate of Title. You don't need Probate to remove the name of a deceased joint owner from the title. However, if the deceased owned real estate as a sole proprietor or as a "tenant in common" then Probate is always necessary because the Land Registry will not transfer ownership without it.

If there is no real estate then it depends on those who are holding assets like bank accounts. if they insist on seeing a Probate before releasing the asset then the Executor has to get it.

How Executors apply for Probate

To get Probate the executor lodges an application at the Probate Office. If the Will appointed several executors, one or more can apply.

When you lodge an application at the Probate Office you pay a couple of fees that total about $350.

Applying for probate is not difficult, and you can do it yourself. In fact, doing it yourself is the quickest and cheapest way and also the safest way because it keeps assets under your personal control.

Lawyers charge probate application fees that increase with the value of the estate. For a $100, 000 estate the fee is around $680 plus expenses. The lawyer then charges more to collect the assets and distribute them to beneficiaries. These fees vary widely, but are often $2000 or more.

Even if you pay someone else to handle Probate you still do most of the work yourself, because it involves digging out personal information about assets and debts. Only you can do that.

If a Will appoints a lawyer or trustee company as executor, they can apply for "executor's commission" of up to 5% of the value of the estate (which is thousands). Some trustee companies will agree not to apply for probate if the family asks them not to.

Legal Kits of Victoria publishes a {Do-It-Yourself Probate Kit} that shows you how to get Probate in as little as three weeks, and then "wind up" the estate yourself. It explains things in an easy-to-understand way, and includes probate application forms and samples showing how to fill them out. The "Legal Kits" system is a proven success at the Probate Office.

If there is no Will

If there is no will:

  • There can be no Probate (because you have to submit a Will to get probate), and
  • There can be no Executor (because executors are appointed in Wills). That means the estate has to be handled by an "administrator" rather than an executor. Instead of applying for probate, the administrator applies for "Letters of Administration".

A Letters of Administration certificate looks almost the same as a probate certificate, and serves the same purpose. That is, it authorises the administrator to gather the assets together and distribute them to beneficiaries.

Since there is no Will to say who should inherit the estate, it goes to the next-of-kin according to a formula set out by the Government. The spouse gets the first $100, 000 plus one third of the balance, and the children get the rest. The Government does not "get the lot" as some people believe. (Note that the limit to the spouse's entitlement is seriously out of touch with current asset values and this makes it important to have a Will to protect the spouse's entitlement to the family home in particular).

There is an order in which the next of kin are entitled to apply for "Letters of Administration ". A spouse has the first right to apply for it, followed by the children, followed by parents, followed by brothers or sisters.  "Domestic partners" have the same rights as spouses.

If there is a Will but no executor, the estate still goes to the beneficiaries named in the Will. However, since there is no Executor to apply for Probate, one (or more) of the beneficiaries applies for "Letters of Administration".

Our Probate Kit is not set up to handle "Letters of Administration" applications.

Social Security Benefits

If the person who died was receiving Social Security benefits, then:

  • if they were single, Social Security makes one more payment and then stops the pension
  • If they were receiving the married couple pension, the pension drops back to the single person rate. The surviving partner also receives a "bereavement allowance" of seven times the difference between their married and single rate. CentreLink has financial advisers available. To notify them of a death you phone 13 2300.

The CentreLink website contains information about bereavement allowances (and the income and asset limits that apply to them).

Assets & Debts

Bank Accounts

Some people say, "everything is frozen until probate comes through", but that is not true. Most banks will give an executor immediate access to bank accounts of less than $5000. So do not assume that bank accounts are "frozen" - talk to the bank.

Bank accounts in joint names should not be affected at all by the death of one joint owner.

The Funeral Bill

Most banks will pay the funeral bill from an account owned by the deceased. They ask for the funeral director's bill and the death certificate, so you need to apply for the death certificate without delay. If the funeral director has not applied for the certificate already, you can apply from a Post Office.

Real Estate

If real estate is "jointly" owned, it automatically becomes the property of the surviving 'Joint owner", so all you need to do is notify the Titles Office (on special forms) that one of the joint owners has died.

If there is no surviving joint owner, what happens to real estate depends on what the Will says, and the executor arranges it after getting a probate certificate. Legal Kits of Victoria has "supplements" to its Probate Kit showing how to transfer the ownership of real estate with no legal fees. (Further detail is given in the Kit).

Cars

To transfer car ownership to a surviving spouse or someone entitled under a Will (or entitled to inherit even if there is no Will); you give VicRoads photocopies of the death certificate and the Will, and complete a transfer form. You can do this by mail (GPO Box 1644N, Melbourne Vic 3001) or in person at VicRoads. Phone 13 11 71. There is no stamp duty.

To transfer ownership to someone other than those mentioned above, you must give VicRoads a roadworthy certificate, a transfer fee ($25 at present), evidence of the market value of the car, and stamp duty (calculated at $8 per $200 or part thereof). The car can only be transferred to one person's name.

You can get more information about transferring cars from:

* www.vicroads.vic.gov.au, or

* from our VicRoads page.

Powers of Attorney

A Power of Attorney becomes invalid on the death of the person who gave the power.