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Estate Administration

VIC

This publication assists practitioners in Victoria who are acting for executors and administrators in estate matters.

3 Matter Plans

Overview

The publication comprises 2 guides to assist practitioners in obtaining a grant of probate or letters of administration. The commentaries cover obtaining the grant, collecting the assets, and distributing the estate in accordance with the will or the rules of intestacy.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included is 101 Succession Answers (VIC), which is a useful reference guide.

Precedents in this publication include:

  • Letters to the executor or administrator and beneficiaries at various stages;
  • Libraries of letters to asset holders – initial and final;
  • Letters and forms for executor or administrator commission;
  • Deeds of release and indemnity;
  • Deeds of family arrangement;
  • Statement of assets, liabilities, and distribution;
  • Letter to beneficiaries with distribution;
  • Final letters to executor or administrator – concise and extensive.
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3 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Probate (VIC)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Succession Answers (VIC)
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Wills and estates
      • Item icon Estate planning - An exciting opportunity for small law firms
      • Item icon Executor's commission 1 - Executor's commission and the professional executor
      • Item icon Executor's commission 2 - Horns of a dilemma
      • Item icon Executor's commission 3 - A fiduciary duty
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon To accept or not accept instructions in urgent will matters
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    Grants of probate are available when the deceased has a will that appoints an executor or executors who are willing and able to apply for probate. Other available grants include:

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  • Item icon Summary of the process
    The usual steps in applying for a grant of probate include:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Probate
    • Item icon To do list - Probate
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Estate administration
    • Item icon Conflict of interest check
    • Item icon Initial letter to spouse executor
    • Item icon Initial letter to executor confirming instructions
    • Item icon Initial letter to executor with duties when small estate and we are not acting
    • Item icon Enclosure - Information sheet
    • Item icon Costs agreement - Estate administration - VIC
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions in probate matters
      A law firm acting for several executors in a probate matter should advise the clients that the firm cannot act or continue to act when it has a material conflict of interest: rr 2.10–2.12 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. A firm acting for an ...

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    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Preliminary matters including the will, executors, and beneficiaries
    • Item icon When a grant is required
      Obtaining a grant is not a statutory requirement. Most banks, financial institutions, and share registries do not insist on a grant to release or transfer cash in bank accounts if the amount concerned is small. They normally accept evidence of death and entitlement, and signed indemnities from a ...

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    • Item icon Payment of funeral expenses and other debts
      Most banks allow executors to withdraw funds from a deceased’s account to pay funeral expenses before a grant is obtained. Funeral directors are often willing to defer payment until the estate is distributed. Whoever arranges a deceased’s funeral is entitled to be reimbursed out of the estate for ...

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    • Folder icon If required - Authority previous solicitor
      • Item icon Letter to another solicitor with authority to obtain documents
      • Item icon Authority of executor to obtain will from another solicitor
      • Item icon General authority to hand over documents
    • Folder icon If required - Application for a death certificate
      • Item icon Letter to Registry of Births, Deaths and Marriages applying for death certificate
      • Item icon Online application for death certificate
      • Item icon Paper form - death certificate application
    • Item icon Executors
      An executor is responsible for:

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    • Folder icon If required - Renunciation
      • Item icon Renunciation
      • Item icon Letter to executor with renunciation
      • Item icon Renunciation of probate (2014 Rules)
      • Item icon Affidavit verifying renunciation of probate (2014 Rules)
    • Folder icon If required - Removal of executor and trustee
      • Item icon Clause - Originating motion to remove and replace executor and trustee
      • Item icon Clause - Originating motion to remove and replace executor
      • Item icon Clause - Originating motion to remove and replace trustee
    • Folder icon Beneficiaries
      • Item icon Beneficiaries
        A beneficiary is a person or entity to whom a bequest is made in a will. A named person is only a beneficiary when the will and the bequest are valid.

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      • Item icon Initial letter to beneficiaries re probate application
      • Item icon Initial letter to beneficiaries re application for probate where client is alternate or remaining executor
      • Item icon Deed of disclaimer - Probate
      • Item icon Statutory declaration - blank - VIC
      • Item icon Clause - Statutory declaration of beneficiary under will
    • Item icon Challenges to a will
      A challenge to a will questions its validity, not the fairness of its provisions. While each Australian state and territory has laws concerning wills, the circumstances and processes involved in challenging a will are similar across all Australian jurisdictions.

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    • Folder icon If required - Caveats
      • Item icon Caveats on grants
        Filing a caveat will requires proper consideration and due cause – for example, grave doubts about a will’s validity. See Grounds for invalidity and r 8.06 of the Supreme Court (Administration and Probate) Rules 2023. Under r 8.06, the caveator:

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      • Item icon Letter to caveator's solicitor for caveat details
      • Item icon Letter to client re the caveat
      • Item icon Notice of withdrawal of caveat (2014 Rules)
  • Folder icon C. Gathering information
    • Folder icon Library of initial general letters
      • Item icon Initial letter to Centrelink
      • Item icon Initial letter to Medicare
      • Item icon Initial letter to Electoral Roll
      • Item icon Advice of death for Centrelink, Medicare
    • Folder icon Library of initial letters to asset holders
      • Item icon Initial letter to bank building society
      • Item icon Initial letter to nursing home
      • Item icon Initial letter to health insurer
      • Item icon Initial letter general cancellation of membership
      • Item icon Initial letter to deceased's accountant
      • Item icon Initial letter to deceased's employer
      • Item icon Initial letter to superannuation fund
      • Item icon Initial letter to deceased's stockbroker for portfolio details
      • Item icon Initial letter to company for debenture particulars
      • Item icon Initial letter to company or registry for share particulars
      • Item icon Initial letter to government department re motor vehicle
      • Item icon Initial letter to deceased's insurer for policy details
      • Item icon Initial letter to deceased's insurer for details of bonds
      • Item icon Initial letter to mortgagee requesting mortgage details and transfer requirements
    • Item icon Initial letter to creditor
    • Folder icon If required - Where cause of death leads to compensation
      • Item icon Cause of death
        A deceased’s cause of death may give rise to compensation or damages. Legal action may be required for death resulting from a motor vehicle or work accident. See the Transport Accident Commission Claims (VIC) guide.

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      • Item icon Initial letter to CTP insurer
      • Item icon Initial letter to workers compensation insurer
  • Folder icon D. Probate
    • Item icon Applying for probate
      Applications for grants of probate are made to the Supreme Court of Victoria. Most applications are uncontested, at least at the outset. Uncontested applications are lodged online using RedCrest-Probate, the Supreme Court’s online filing system for all applications and supporting documents.

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    • Item icon Advertising notice of intended application
      At least 14 days before the originating motion is filed, an applicant must advertise on RedCrest-Probate notice of their intention to apply for a grant of probate: r 2.03 of the Supreme Court (Administration and Probate) Rules 2023. The notice must include:

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    • Item icon Example - Probate advertisements
    • Item icon RedCrest-Probate
    • Item icon Filing the application
      An application on RedCrest-Probate is completed by the following steps:

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    • Item icon Completing the generated forms
      Forms generated by the online application process on RedCrest-Probate include:

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    • Item icon Affidavit of executors or administrators
    • Item icon Certification of death registration
    • Item icon Will with exhibit note B - Example wording
    • Item icon AI Prompt for Inventory of Assets and Liabilities
    • Item icon Letter to court enclosing original will
    • Folder icon Library of less common forms, affidavits and notices
      • Item icon Affidavit
      • Item icon Clause - Affidavit by firm - Condition and finding of the will
      • Item icon Clause - Affidavit by executor - Condition and finding of the will
      • Item icon Clause - Affidavit by person with knowledge - Condition and finding of the will
      • Item icon Clause - Affidavit by subscribing witness - Condition and finding of the will
      • Item icon Clause - Affidavit of additional assets
      • Item icon Clause - Affidavit of delay
      • Item icon Clause - Affidavit of due execution
      • Item icon Example content - Affidavit of due execution annexure
      • Item icon Clause - Affidavit of due execution - Translator
      • Item icon Clause - Affidavit of due execution - Willmaker made mark
      • Item icon Clause - Affidavit of searches administration will annexed
      • Item icon Clause - Affidavit of service
      • Item icon Clause - Affidavit in support - Testamentary capacity
      • Item icon Clause - Affidavit verifying administration account
      • Item icon Example content - Affidavit wording regarding domestic partner
      • Item icon Example content - Exhibit note - Certified copy of clinical-file notes
      • Item icon Notice of discontinuance
    • Item icon Grant of probate
      The original grant of probate is the electronic copy issued in RedCrest-Probate. The issued grant can be accessed on RedCrest-Probate using the application number and unique identifier.

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    • Item icon Letter to executor on grant of probate
  • Folder icon E. If required - Reseal
    • Item icon Reseal
      A grant of probate has no effect in other jurisdictions. For example, a grant of probate made in Queensland cannot be used to deal with assets held in Victoria. To be effective, the original grant needs to be resealed by a court in the second jurisdiction. This means the second court accepts the ...

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    • Item icon RedCrest-Probate
    • Item icon Example - Probate reseal advertisements
    • Item icon Affidavit
    • Item icon Clause - Affidavit of executor - Reseal of probate
    • Item icon Clause - Affidavit of legal practitioner in support - Reseal of probate
    • Item icon Certificate of reseal endorsement - Reseal of probate
  • Folder icon F. If required - Application for executor commission
    • Item icon Executor commission
      The payment of commission to an executor arises through:

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    • Item icon Agreement to pay commission
      Executor commission usually is agreed between the executor and the interested beneficiaries. The amount generally is no more than 1% to 2% of the estate. It is a discretionary amount and an executor seeking commission should be aware that the court may not award any commission at all, especially in ...

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    • Item icon Application for commission
      The procedural and documentary requirements of an application for executor commission are set out in the Supreme Court (Administration and Probate) Rules 2023. The steps and requirements occur in the following order:

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    • Item icon Letter to executor entitled to claim commission
    • Item icon Letter to beneficiary re claim for commission
    • Item icon Probate Office – Summons for commission
    • Item icon Administration account
    • Item icon Affidavit in support of application for commission
    • Item icon Consent
  • Folder icon G. Dealing with assets/administration
    • Item icon Tax, duty, superannuation, and deeds of family arrangement
      Estate taxes and duty Executors should be advised to seek appropriate information and specialist guidance from an accountant or qualified tax adviser before assets are redeemed or transferred.

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    • Item icon Dealing with assets
      Depending on the nature of an estate, some executors may wish to administer the estate themselves. Executors who administer an estate, including a trustee company, usually set up an interest-bearing estate account to consolidate the estate's funds before distribution.

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    • Folder icon Verification of identity
      • Folder icon Library of identity and authorisation forms - VIC
        • Item icon Verification of identity certificate
        • Item icon Client authorisation
        • Item icon Identifier declaration
        • Item icon Identity agent certification
        • Item icon Australian Embassy/High Commission/Consulate certification form
    • Folder icon Library - Letters and forms - Finalising estate accounts and property
      • Item icon Endorsement for photocopy of parchment
      • Item icon General collection letter
      • Item icon General reminder letter
      • Folder icon Bank
        • Item icon Letter to bank building society for account proceeds
        • Item icon Endorsement for bank withdrawal form
        • Item icon Certificate of identity for bank withdrawal forms
      • Folder icon Real property
        • Item icon Duty on transfers
          The transfer of property from a deceased estate is a dutiable transaction. Generally, a transfer that is not made for valuable consideration by an executor to a beneficiary in conformity with the will or arising on intestacy is exempt from duty.

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        • Item icon Transfers of real property
          Jointly owned property automatically passes to the surviving proprietor and is not dealt with under a will. An executor lodges evidence of death to transfer a joint tenant’s interest to the survivor. For property a deceased owned as a sole proprietor or tenant in common, their executor lodges a ...

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        • Item icon Foreign resident capital gains withholding payments
          The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016. Essentially, when real property is transferred, the transferee is required to withhold 15% of the purchase price and remit this sum to the Australian ...

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        • Item icon Application by legal personal representative
        • Item icon Statutory Declaration for Application by legal personal representative
        • Item icon Application by surviving proprietor
        • Item icon Statutory Declaration for Application by surviving proprietor
        • Item icon AI Prompt for Statutory Declaration in a survivorship application confirming identity of the deceased
        • Item icon Letter to bank building society for a transfer of land
        • Item icon Letter to bank building society for application by surviving proprietor
        • Item icon Deceased estate - Commencement or completion of administration
        • Item icon SRO SmartForm - Notice of acquisition of an interest in land
        • Item icon Notice of acquisition of an interest in land - Estate matters only
        • Item icon SRO SmartForm - Notice of trust acquisition of an interest in land
        • Item icon SRO Digital duties form
        • Item icon Letter to settlement agent enclosing documents for registration
      • Folder icon Insurance and superannuation
        • Item icon Letter to deceased's insurer for payment
        • Item icon Letter to health insurer for payment
        • Item icon Letter to superannuation fund on transmission
        • Item icon Letter to deceased's insurer cancelling home insurance
      • Folder icon Shares
        • Item icon Letter to company debenture transmission
        • Item icon Letter to company shares transmission
        • Item icon Transmission application - Company shares for deceased matters
        • Item icon Section 1071B Statement
        • Item icon Transfer of shares
      • Item icon Letter to government department for transfer of motor vehicle registration
      • Item icon Letter to nursing home for payment
    • Folder icon If required - Deeds of family arrangements
      • Item icon Deeds of family arrangement
        Deeds of family arrangement are agreements to vary the distribution of an estate set out in a will or arising on intestacy. Beneficiaries can agree to share the estate assets under this type of arrangement. Clients must be advised of all potential tax or duty implications of a deed of family ...

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      • Item icon Power of the court to vary trusts
        Under s 63A of the Trustee Act 1958, court approval is required for a deed of family arrangement that involves terminating a trust established by the will and a trust beneficiary who is a minor and not capable of consenting to an arrangement to vary that trust. The court must be satisfied the ...

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      • Item icon Deed of family arrangement - Life tenant and remainderman
      • Item icon Deed of family arrangement
    • Folder icon If required - Gifts to charities
      • Item icon Letter to charitable institution beneficiary discussing residuary legacy
      • Item icon Letter to charitable institution beneficiary discussing pecuniary legacy
      • Item icon Letter to charitable institution beneficiary discussing specific legacy
    • Item icon Letter to executor advising assets sold
    • Item icon Letter to creditor paying account
  • Folder icon H. Distribution
    • Item icon Distribution
      Executors should not distribute an estate to the beneficiaries until legislative requirements have been met and the estate’s debts, liabilities, and relevant expenses have been paid. This is to ensure they do not incur liability for early distribution. However, if the estate is small and the ...

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    • Item icon Payment of debts
      All the deceased’s assets are available to pay the estate’s debts, including funeral and other testamentary and incurred expenses. Executors must not diminish an estate unnecessarily by paying claims they are not bound to pay. They should try to preserve specific bequests.

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    • Folder icon If required - Interim distribution
      • Item icon Interim distribution
        An interim distribution to beneficiaries of part of their entitlement may be appropriate, depending on the estate's circumstances. Considering s 99A of the Administration and Probate Act 1958, an executor should only make an interim distribution when the estate has sufficient funds to cover ...

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      • Item icon Letter to beneficiary on interim distribution enclosing statement for approval
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Creditors' notice of intended distribution
    • Folder icon Distribution prior to 6 months
      • Item icon Letter to executor with final accounts and distribution - Prior to 6 months
      • Item icon Letter to beneficiary on distribution - Prior to 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon If required - Deeds of release and indemnity
      • Item icon Deed of release and indemnity - No grant
      • Item icon Deed of release and indemnity - Distribution - Without notice of claims
      • Item icon Deed of release and indemnity - Distribution - With notice of claims
      • Item icon Deed of release and indemnity - Executors commission
    • Folder icon Distribution after 6 months
      • Item icon Letter to executor with final accounts and distribution - After 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Letter to beneficiary enclosing specific bequest
    • Item icon Letter to beneficiary with distribution of residue
    • Item icon Deceased estate - Commencement or completion of administration
    • Item icon Keeping proper accounts
      Executors and administrators are required to keep proper estate accounts to ensure they provide the beneficiaries with complete and accurate information: r 6.03 of the Supreme Court (Administration and Probate) Rules 2023. To do so, an executor should:

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  • Folder icon I. Finalising the matter
    • Item icon Final letter to executor - Concise
    • Item icon Final letter to executor - Extensive
    • Item icon Example invoice incorporating notification of client's rights - VIC
    • Item icon Invoice recital - Estates
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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