When dealing with estate matters after a loved one’s passing, it’s likely that you’ll have to deal with a process called probate.
Understanding the role of a probate lawyer can help you to get the process done smoother and quicker, and avoid many pitfalls and headaches.
A probate lawyer, also known as an estate lawyer, is a legal professional who assists the executor of an estate (the person named in the will to distribute the deceased’s assets) and beneficiaries (the individuals who are inheriting the assets) in managing the probate process including obtaining Grant of Probate and distributing the assets.
In this article we will cover exactly what a probate lawyer is and how they can help you.
Firstly, What Is Probate?
In order to answer what a probate lawyer is, you first need to understand what probate is.
Probate is the legal procedure where a will is validated by the Supreme Court of Victoria once a person dies. It confirms the will’s authenticity and grants the executor the authority to administer the deceased’s estate according to the will’s provisions.
When Is Probate Necessary?
The process of probate is typically necessary in the following circumstances:
- When the deceased person left a valid will which clearly names an executor. The probate process will verify the will and give the executor the legal authority to deal with the estate.
- Depending on the size and complexity of the estate. For smaller or less complex estates, especially those where assets are jointly owned, probate may not be required, and the assets may simply pass to the surviving joint owner.
- If requirements from asset holders such as banks, financial institutions, and the Land Titles Office state that they require Grant of Probate. Generally, if the deceased had assets over a certain value threshold (which may vary depending on the institution), a Grant of Probate may be required before these assets can be accessed or transferred.
When Is Probate Not Necessary?
In Victoria, probate is typically not necessary in the following circumstances:
- If the estate is small, financial institutions may release funds without a Grant of Probate if the estate is below their specified threshold. However, these thresholds can vary, so it’s important to check with the specific institution.
- If assets were owned jointly, such as property or bank accounts, these assets generally pass directly to the surviving owner and do not need to go through probate.
- Assets that allow for beneficiary nominations, like superannuation funds and life insurance policies, typically bypass the probate process and are transferred directly to the nominated beneficiaries.
- Assets held in a trust are managed and distributed according to the terms of the trust, bypassing the need for probate.
- If there’s no uncertainty about the will’s validity, no <<disputes about the estate>>, and the assets are straightforward to distribute, probate might not be necessary.
So, What Is a Probate Lawyer?
As mentioned in the introduction, a probate lawyer is a lawyer that specialises in estate law whose role is to guide executors and administrators of an estate through the probate process. This includes obtaining the Grant of Probate and distributing the assets.
A probate lawyer must have a deep understanding of the Administration and Probate Act 1958, which governs probate law in Victoria, and they must stay updated on any changes or amendments to this act in order to fulfil their role.
What Does a Probate Lawyer Do?
A probate lawyer in Victoria will typically do the following roles:
Document Preparation and Filing
A probate lawyer will take an executor’s instructions and prepare and file the necessary paperwork for the probate process, this includes preparing the application for a Grant of Probate, lodging the application with the Supreme Court of Victoria and ensuring all documentation complies with legal requirements.
Probate lawyers can help identify, gather, value and manage the deceased’s assets. This process may involve locating and securing both physical assets (like properties in Melbourne or elsewhere) and financial assets.
Before beneficiaries can receive their inheritances, all outstanding debts and taxes of the deceased must be paid. A probate lawyer helps to identify creditors, notify them of the death, and settle these debts using the estate’s assets.
After all debts are paid, the remaining assets are distributed to the beneficiaries as per the will’s instructions. A probate lawyer ensures this distribution by the executor complies with the will’s terms and legal regulations.
Legal Advice and Court Representation
A probate lawyer can offer legal advice to executors and beneficiaries throughout the probate process to deal with any uncertainties, issues or complexities that may arise. They can also manage situations where no valid will exists, known as intestacy, ensuring the deceased’s assets are distributed according to Victoria’s laws of intestacy.
In cases where a will is contested or there are disputes among beneficiaries or between an executor and beneficiaries, a probate lawyer can provide legal advice, mediation and court representation.
Other Estate Services
The role of a probate lawyer can also extend beyond just the probate process. They can also help with drafting agreements between beneficiaries and executors if an agreement has been reached to vary the gifts given in the will. A probate lawyer can also assist with drafting and updating estate planning documents like wills and trusts, provide advice on tax implications, and assist in the administration of trusts.
Do You Have to Have a Lawyer to Go Through Probate?
No, it is not a legal requirement to have a lawyer to go through probate in Victoria. The executor of the will has the responsibility to administer the estate and can choose to do so without legal assistance.
However, the probate process can be complex and time-consuming, especially for larger estates or if there are disputes among beneficiaries. It involves dealing with the Supreme Court, identifying and valuing assets, paying debts and taxes, and distributing the remaining assets according to the will. Mistakes can lead to delays, additional costs, or legal complications.
Why You Should Use a Probate Lawyer
Probate law in Victoria can be complex, especially when dealing with larger estates, complex situations or if disputes arise.
Navigating probate law can feel overwhelming during an already difficult time. A competent probate lawyer can ease this burden, guiding both executors and beneficiaries through each step of the process.
By ensuring all legal obligations are met and protecting the interests of all involved parties, a probate lawyer is a crucial partner in managing the intricacies of probate in Melbourne, providing peace of mind that all matters are handled legally, efficiently and in a timely manner.
Can a Probate Lawyer Help You With Other Areas of Estate Law?
Yes, probate lawyers can typically assist with other areas of estate law beyond just the probate process. As experts in estate law, their knowledge usually extends to other areas including:
- Estate planning including drafting wills and updating important estate planning documents like trusts, powers of attorney, and advanced healthcare directives.
- Helping to manage the administration of a trust and provide advice on the legal obligations of trustees.
- Guardianship proceedings, if a guardianship needs to be established for a minor or an incapacitated adult.
- Advice on tax planning and the tax implications of estate planning and inheritance, helping to minimize the estate tax burden.
- Advice on protecting assets from potential creditors and ensuring they’re effectively transferred to beneficiaries
- Some probate lawyers may also provide assistance with elder law issues, like long-term care planning, Medicare/Medicaid planning, and elder rights
Do You Need to Speak to a Probate Lawyer?
Whether you need the services of a probate lawyer or you just want some advice regarding your situation, our friendly and experienced team are here to help. Just press the button below or fill out the form to get in contact with our team about your probate matter now!