Estate Lawyers FOr Ascot Vale

To obtain a grant of probate or letters of administration, you will need to make an application to the Supreme Court of Victoria. The Court requires that you lodge the following documents:

• An originating motion for a grant of probate or letters of administration.
• A copy of the advertisement for probate or letters of administration (done via the Probate Online Advertising System) which needs to be done 14 days before filing of the originating motion.
• An executors or administrators affidavit which exhibits a certified copy of the death certificate of the deceased, the will (if any) and an inventory of assets and liabilities of the estate.

Sometimes, the Court will require further documentation to be filed. For example, if the will has been executed with different pens, the Court can request an affidavit of due execution to be filed. We can help you prepare these documents. Once the Court is satisfied with the application, it will issue the executor a formal grant of probate or letters of administration document.

The primary role of the executor is to fulfil the wishes of a will or follow the Victorian law that governs what happens to the estate of someone who has died “intestate” (without a valid will). This will involve:

• Collecting/realising the assets of the estate
• Paying any debts of the deceased (for example funeral expenses and creditor debts)
• Distributing the assets

An executor can refuse their appointment if they do not believe they can fulfil this role. 

An executor or administrator an estate has fiduciary obligations towards the estate. This means that they are required look out for the beneficiaries' best interests and behave in their best interest at all times. Timely administration and distribution of the estate is the responsibility of the executor, who must factor in all relevant matters that may emerge. The executor should be careful to ensure that they have complied with their duties to the estate and obtained appropriate legal advice and taxation advice. If an executor breaches their duties, they could be personally liable for their actions to the estate. It is important for executors to act diligently and carefully in fulfilling their duties to avoid such consequences. Getting the right legal advice can be critical in protecting the executor and the estate.

The costs of legal fees are payable by the estate so the executor or administrator should not be out of pocket for these expenses. 

 A power of attorney is different to a will and unlike a will , a power of attorney ceases to have effect if the principal passes away. A will is a document that is used to distribute the estate of a person once they have passed away whereas a Power of Attorney allows a Principal to give  certain decision making powers to another person.  

Section 26 of the Powers of Attorney Act 2014 limits the matters for which Enduring Powers of Attorney can be given. Some of the restrictions created under this section of the Act include a prohibition on a principal from authorising an attorney to: 

• make or revoke a will for the principal
• make or revoke an enduring power of attorney for the principal
• vote on the principal's behalf in an election
• consent to the entering into or dissolution of a marriage of the principal or of a sexual relationship of the principal
• make or give effect to a decision about the care and wellbeing of any child of the principal or about the adoption of a child under 18 years of age of the principal
• enter into, or agree to enter into, a surrogacy arrangement, within the meaning of the Assisted Reproductive Treatment Act 2008 , on the principal's behalf
• consent to the making or discharge of a substitute parentage order, within the meaning of the Status of Children Act 1974 , on the principal's behalf 
• manage the estate of the principal on the death of the principal
• consent to an unlawful act

A Principal can make any restrictions it choses in the Power of Attorney document and should carefully consider what powers it authorises an attorney to do. For example, some powers of attorney instruments will prohibit the Attorney from dealling real estate interests of the principal. 

Under section 4(1) of the Powers of Attorney Act  2014, a person has the capacity to make a decision if they are able to: 

• understand the information relevant to the decision and the effect of the decision
• retain that information to the extent necessary to make the decision
• use or weigh that information as part of the process of making the decision
• communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means

An attorney who has been appointed under an Enduring Power of Attorney must act in accordance with the law and perform their duties, as provided under Section 63 of the Powers of Attorney Act 2014. The duties provide that an attorney:

• must act honestly, diligently and in good faith
• must exercise reasonable skill and care
• must not use the position for profit (unless permitted under section 70)
• must avoid acting where there is or may be a conflict of interest unless the attorney is authorised by the power, the principal or VCAT
• must not disclose confidential information gained as the attorney under the power unless authorised by the power or by law
• must keep accurate records and accounts as required by section 66.

Section 28 of the Powers of Attorney Act  2014 provides who is eligible to be appointed as an attorney. A person is eligible to be appointed attorney if they: 

• are over 18 years of age
• are not insolvent under administration
• have not been convicted or found guilty of an offence involving dishonesty or if the person has been convicted or found guilty of an offence involving dishonesty, has disclosed the conviction or finding of guilt to the principal and the disclosure of the conviction or finding of guilt has been recorded in the enduring power of attorney; 
• are not a care worker, a health provider or an accommodation provider for the principal

You should give careful consideration to who you are appointing as your attorney. It is an important decision and one which should not be taken lightly. We always recommend that you should only appoint someone that you trust as your attorney. This is because of the wide ranging powers that an appointment of an attorney can provide.