Probate and Deceased Estates

Obtaining a Grant of Representation

When a person dies, there a number of legal steps required to be taken in order to deal with their estate.

However, the power to deal with a deceased person’s estate does not automatically pass to the executor named in their Will when that person dies. In most cases, before an executor can deal with a deceased person’s property and assets, they must first obtain a Grant of Representation.

A Grant of Representations may be in the form of a Grant of Probate or a Grant of Letters of Administration.

Probate

A Grant of Probate in relation to a deceased estate is issued by the Supreme Court of Victoria in relation to a deceased person’s Will and confers upon the executor named in that Will the legal authority to administer the deceased’s estate.

Letters of Administration

Where a person dies without a Will or where the executor appointed under a Will is also deceased or no longer wants to act in that role, a Grant of Letters of Administration is required. This type of Grant is also issued by the Supreme Court of Victoria.

When is a Grant needed?

You will most likely need a Grant of Probate or Letters of Administration if:

  • the deceased owned property
  • the deceased owned shares or other investments
  • if required by a bank or financial institution to enable the closing of the deceased’s bank accounts.

You should seek legal advice about your particular circumstances before attempting to obtain a Grant of Representation and administer a deceased’s estate.

Administration of the Estate

As an executor or administrator of a deceased estate, you have duties and obligations imposed by law and relevant State legislation.

Principally, you are required to call in the assets of the estate and to distribute them to the beneficiaries of the estate and to act in the best interests of those beneficiaries at all times.

Usually, the distribution of the estate will be as set out in the Will. Where a person dies without a Will, the Administration and Probate Act 1958 (Vic) determines who will receive that person’s estate.

Also, if there is a claim made against a deceased estate for any reason (such as a testator’s family maintenance claim), the executor or administrator will be named as the defendant to that claim in their representative capacity.

Legal Costs in relation to Deceased Estates

Generally, an executor or administrator will be entitled to be reimbursed from the estate for any reasonable costs that they incur in obtaining a Grant of Representation and administering the estate, including any legal costs.

If you find yourself in a position where you have to deal with a deceased estate, contact Mackinnon Jacobs Lawyers who have an experienced team of Wills, Probate and Estate litigation lawyers to assist you through the process of obtaining a Grant of Representation and administering the estate.

Contact us to arrange a consultation.