In Victoria, probate is the process of officially proving a will as the last will of the deceased and registering such will with the Supreme Court of Victoria. Probate is the court’s official recognition that the will is legally valid, and the executor(s) is authorised to deal with the deceased’s estate.
The main objective of probate law is to deal with the property of the deceased person so that it is distributed to the beneficiaries as per the intentions of the deceased. In the majority of succession matters it will be the executor who is named within the will who will commence the probate related legal proceedings.
An executor is the ‘legal personal representative’ of the deceased person. This person is legally able to act on behalf of the deceased person upon the granting of probate. The role of an executor involves numerous important duties and obligations, including most importantly:
- to arrange for the burial or cremation of the body;to take control of all assets and to collect all debts due to the estate;
- to use the money or assets in the estate to pay all the deceased person’s debts;
- to make sure the assets of the estate aren’t wasted;
- to distribute the estate’s assets to the people the will says should have them.
The duties of a legal personal representative should not be underestimated.
In cases where a will does not exist, an administrator of the will is appointed pursuant to ‘Letters of Administration’.
Pointon Partners are able to assist in probate applications for executors of deceased estates, and letters of administration where a will does not exist. We are able to inform clients in detail about the rights and responsibilities of an executor or administrator, and can guide executors and administrators of estates through the process of applying for a grant, administering an estate and distributing the net assets of the estate to beneficiaries. We can also assist with any outstanding transfers of property from the deceased estates.
Testator’s Family Maintenance Claims
Despite any contrary intention of a will maker, under section 91(1) of the Administration and Probate Act 1958 (Vic), the Supreme Court has power to order that financial provision be made out of the estate of a deceased person for the ‘proper maintenance and support’ of a person ‘for whom he or she had responsibility to make provision’. The responsibility which is considered is a moral responsibility.
The freedom to make a will on whatever terms one wishes is limited by the overriding consideration that a person must discharge his or her moral responsibility to provide for one’s spouse, children or others. This moral obligation may extend to stepchildren. The court may order that the estate be distributed as the court deems appropriate in the circumstances.
When determining whether the deceased had a responsibility to make provision for a person and whether the proposed distribution of the estate, as contemplated under the deceased’s will or rules of intestacy, makes adequate provision for the proper maintenance and support of that person the court must have regard to the following matters (section 91(4)):
- Any family or other relationship between the deceased and the applicant, including the nature of the relationship and where applicable the length of the relationship;
- Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
- The size and nature of the estate of the deceased person;
- The financial resources of the applicant and the financial needs of the applicant;
- Age, sex and health of the applicant;
- If the applicant received any gift, transfer or other provision made by the deceased during their life;
- Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
- Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the court considers relevant, the extent to which and the basis upon which the deceased has assumed that responsibility;
- The liability of any other person to maintain the applicant;
- The character and conduct of the applicant; and
- Any other matter the court considers relevant.
Pointon Partners can assist in providing strategies to avoid family maintenance claims and also provide advice in respect of a claim that you may have.