Probate Law: Expert Tips on Mastering this Legal Maze

Specialising in probate law requires you to be across a range of legal areas when it comes to handling your client’s affairs. Ideally, you’ll want to have legal knowledge in areas such as property, business, trusts, tax, super and even family law.

Over the next twelve months, we may see an increasing demand for the expertise of probate lawyers. With the Royal Commission into aged care well underway and a growing ageing population to consider, the topic of how Australians are handling their senior parents’ affairs can prompt a focus on the management of their estate and dealing with wills and probate.

What is a grant of probate?

A grant of probate* is issued by the Supreme Court, confirming:
– that someone has passed away,
– the will included in the probate order is the latest version,
– and the person listed in the order is the appropriate executor and can administer the estate.

The probate order is then sent to each of the institutions that hold the assets such as the deceased person’s bank, which can then be released to the lawyer’s trust fund for the executor to pay any outstanding taxes and liabilities (including legal and funeral expenses), and then distribute the estate.

*Probate is required when the deceased has assets over a certain financial value (approximately $50,000).

When probate legal expertise is required

One expert in this niche area of the law is Laura Evans-McKendry, associate at Maurice Blackburn Lawyers in Melbourne. She’s also the Thomson Reuters author of “Grants of Representation for Probate and Letters of Administration”, Chapter 13.2 of the Lawyers Practice Manual Victoria. Virginia Ginnane from Thomson Reuters reached out to Laura to shed some light on how to unravel a deceased estate and take a will through to the grant of probate.

Drawing on the adage that “nothing is certain except for death and taxes”, probate law is an area where there will never be any shortage of work.

“It’s an area of law that everybody will need,” says Laura, with no hint of irony.

But it’s also a specialist area that requires unique personality management skills to deal with clients in a heightened emotional state, and often with conflicting interests.

“As the executors are often also beneficiaries they have their responsibilities as executor to obtain probate and administer the estate in line with the will and they’ve also got their interests as beneficiaries – and there can be conflicts.”

Deciding what to do with Mum’s remains or who gets the jewellery has been known to tear families apart. This is why it’s critical to take a calm, methodical approach to help ease families through this turbulent time towards granting probate.

“Essentially the estate is finalising someone’s lifetime,” she said. “They may have been running a business or had a particularly complex asset business structure with business trusts, self-super and jointly held assets. You need to pick your way through all that and untangle it, to work out what happens next.”

Essential steps to probate approval

In an ideal situation, before the will maker dies, they’ll need to appoint the executors and let them know that they have been given this responsibility. While it’s not necessary to disclose to the executors what’s in the will, they should know where it’s being stored, whether it’s in a safety deposit box or at the firm who drew it up.

Hypothetical scenario: You’re a legal professional who specialises in probate law. You’ve received a call from John, a new client, who tells you his mother has just passed away.

Here are Laura Evans-McKendry’s essential steps to guide you through the journey from the death of John’s mother to distributing her assets.

1. Speak with the beneficiary. Ask John to give you the original will and confirm the identity of the executors. Let’s say John and his sister Jean are the two executors and the only two beneficiaries.

2. Advise on next steps. You’ll then need to advise John that he will need a death certificate to proceed, which should take between two to four weeks to arrive. In the meantime, it would be best practice to send John a letter requesting details about his mother’s estate including her assets and liabilities.

3. Check your documents. Before you have your first meeting with John and Jean, check the will to confirm it’s the original will and not a photocopy, ensure it’s been correctly signed and witnessed, and that there are no signs of missing attachments, such as staple holes or paperclip marks, which could indicate it has been tampered with. It’s your job to adequately assure the court that everything attached to the will that was intended to be part of it has been included in the probate application.

4. Study the will. Ensure you sit down and read the will from beginning to end before you meet with the executors. You never know what could be at the end of the will that could explain things earlier on.

5. Meet with the executors. Make sure whenever possible your first meeting is with both the executors early in the piece. At this meeting be clear about who your client actually is. If you have multiple executors as clients, in this case two, it’s important to explain to them in person that you need to have unanimous instructions before you can act, and that you require both of them to reply to emails.

During the meeting, discuss timeframes, making it clear that there are many steps before probate is granted and they receive their inheritance. Managing that expectation is very important!

If the executors can’t agree between themselves, they may need to get independent advice, then come back to you with instructions that they see eye to eye on.

Extra tip: Bring a checklist with you when you sit down with the executors, ensuring you cover off everything at that first meeting. For a sample checklist, refer to Chapter 13.2 “Grants of Representation for Probate and Letters of Administration” in the Lawyers Practice Manual Victoria.

6. Locate all beneficiaries. Make inquiries early, for example check with the executors if there are deceased children or beneficiaries whose whereabouts are unknown. If the latter is the case, you must make reasonable efforts to locate them, such as through advertisements, and if you can’t find them, you can apply to the court for the authority to distribute to the known beneficiaries.

7. Finalise everything. Once you’ve completed all the above, work with the executors to fulfill their obligations, to:

  • ascertain the assets and liabilities of the estate
  • determine if probate is required to administer those assets
  • take all appropriate steps to ensure that,– assets are properly distributed
    – taxes are paid
    – creditors are satisfied
    – the business of the deceased is finalised
    – the estate isn’t distributed before the challenge period has expired (this period varies from state to state – in Queensland it’s nine months from the date of death and in Victoria it’s six months from the date of probate)
    – reasonable efforts have been made to find the beneficiaries

And when it’s all over you can look back with a sense of reward, having overcome sometimes huge hurdles at a very emotional time for clients.

It’s an interesting area of law – every file is different and you can make a challenging time a bit simpler for your clients.

Virginia Ginnane is an author, lawyer and writer, working for more than 20 years for international publishers in the UK, US and Australia. Her articles have appeared in The Lawyer, Legal Week, Legal Business, The Guardian, The Sydney Morning Herald and Hello! magazine among many other publications. She was London correspondent for Time Inc’s Who Weekly and Life magazine, and also feature writer at Australian Associated Press in Sydney. Virginia has worked at Thomson Reuters as Commissioning Editor, Tax Writer and is currently Marketing Content Specialist in Tax & Accounting.

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