Probate and Estate Matters
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EXECUTORS
Our estate lawyers are able to assist you with all matters relating to executors and probate. When you make a Will, you will need to appoint an Executor. An Executor is a person who is responsible for the administration of your estate upon your death. They have a wide variety of tasks, and will usually be responsible for:
- Applying for a grant of probate;
- Liaising with your solicitor, banks and other institutions;
- Arranging your funeral;
- Looking after all of your assets, such as ensuring properties are maintained and insured;
- Notifying the beneficiaries of your death;
- Notifying banks, creditors and other agencies of your death;
- Discharge any debts of your estate;
- Arrange for tax returns to be prepared and lodged, or for other legalities to be finalised; and
- Distributing the estate to your beneficiaries.
WHO SHOULD I APPOINT AS EXECUTOR TO MY ESTATE?
You have the freedom to designate anyone as your executor. Frequently, individuals opt for a friend or family member, like a child, as their executor. This choice often comes without charging your estate, but it may necessitate legal assistance due to potential knowledge gaps. Alternatively, you can select your accountant or solicitor as your executor. They generally possess the necessary legal expertise and maintain a more detached approach, which can benefit your beneficiaries financially. However, they typically impose a fee for their executor services.
You can also appoint more than one executor, up to a maximum of four executors. You can appoint your executors to act jointly or severally – this means they can make their decisions alone, or they must make decisions by agreement. If you believe it is likely that your Will may be complicated – such as the potential for someone to challenge the Will, because you have excluded someone from the Will, or if you have children from a previous relationship – it may be wise to consider engaging a professional executor, rather than a friend or family member. Our estate lawyers are give you advice about appointing an executor as well as all other matters regarding executors and probate.
TRUSTEES - WHAT DO THEY DO?
If you decide to create a trust within your Will, you’ll need to think about appointing a trustee to oversee it. Typically, the trustee and executor are the same person. Trusts can be established in various ways in your Will, often occurring when assets are designated for someone under 18 years old. At times, you may choose to establish a testamentary trust within your Will. The trustee assumes responsibility for these trusts.
Once the executor has addressed initial matters such as your funeral, settling estate debts, and informing relevant parties of your passing, they will either continue as the trustee, or the trustee will take on this role. The trustee will hold your estate’s assets in trust, managing them on behalf of your beneficiaries until it’s time to distribute or transfer those assets.
WHO SHOULD I APPOINT AS MY TRUSTEE?
Appointing a trustee involves similar considerations to those for selecting an executor. Frequently, the trustee and executor are identical individuals. Nonetheless, trustees bear extra responsibilities and must comprehend their role as trustees, along with the capability to manage trust assets independently of their personal assets. They must invest the assets and distribute the income and capital in accordance with the Will, which can be complex.
GRANTS OF PROBATE
A Grant of Probate is an official, legal document from the Supreme Court of Victoria that confirms that a Will is valid, and appoints the executor of the estate. Probate allows the executor to deal with the
The probate process needs to be initiated before distributing any estate assets. Any of the appointed executors can request a Grant of Probate as outlined in the Will. Alternatively, if there isn’t a valid Will (by an eligible individual), or if there is a Will but the executors are unable to fulfill their role due to circumstances like death or incapacity, a Grant of Probate can still be sought. In certain cases, when the estate is modest or when assets are primarily held jointly with someone else, obtaining a Grant of Probate may not be necessary.