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Responsibilities of Executor
The Solicitor can assist with the legal requirements. There is usually no necessity for the “reading” of the Will. Usually a copy of the Will is sent to all of the beneficiaries to enable them to be informed about the contents. Sometimes, it may be useful for potential beneficiaries to attend at the Solicitor’s office for a discussion about the Will, but the "reading"& of a Will is more a theatrical ploy used in movies and probably related to the circumstances of 100 years ago when photocopiers were not in existence! Sometimes it may not be necessary to obtain a Grant of Probate. Some assets can be transferred by the Executor without the formalities of obtaining a Grant of Probate and this will reduce the costs significantly. If a Grant of Probate is required, then these Applications are usually best completed by the Solicitor. Once a person dies the validity of the Will comes into existence immediately. An Executor has no power under the Will until the person has died. However, it is often best described that the Executor has provisional status until the Will is "proved" before the Probate division of the Supreme Court of Victoria. The process of obtaining Probate involves a formal Application together with various Affidavits in support of the Application. The original Will, the Death Certificate and a detailed summary of the assets and liabilities need to be lodged with the Application. If the Probate Office is satisfied that all of the appropriate requirements have been met, then a document which is known as the "Probate Parchment" is issued authorising the Executor to deal with the assets of the Estate. A Grant of Probate gives the Executor unconditional authority to deal with the assets. Provided the Executor acts in good faith, even if a subsequent Will was discovered which revoked the Will of which Probate has been obtained, the actions of the Executor cannot be challenged. Consequently, the process of obtaining Probate can be very important in protecting the position of the Executor. Usually, Probate will be required when the assets such as a bank account, insurance policy, shareholdings etc. exceed $30,000.00. Sometimes, the organisations will waive the requirement for Probate if the assets are up to $50,000.00 in value, but it will depend upon the internal policy of each organisation. A Grant of Probate is always required where there is ownership in land. There are various time limits that relate to claims that can be made against an Estate. A Grant of Probate triggers the commencement of these time limits and enables for some definitive finalisation of the Estate to occur. Challenging a Will on the basis of inadequate provision.
It is possible to make a claim against an Estate if a person believes that inadequate provision has been made for them in the Will. Such a claim must be commenced within six months from the date of the Grant of Probate. Prior to 20 July 1998, only a married spouse or a child of the deceased person could make these types of claims. However, since 20 July 1998 there has been a change in the legislation and there is now no limit on the class of person who could make a claim. However, the Courts generally have limited the claims to persons who were married or a defacto spouse or a legal child or step child. Some claims have been allowed for broader categories, but on the whole, these claims have been few. The matters that a Court must take into account in considering these types of claims are:
Legal Costs in challenging Wills
Generally, the legal costs of a claimant who is seeking further provision from the Will for themselves is ordered to be paid by the Estate. This is an unusual requirement and is not similar to other areas of law. These comments are only of a general nature and you will need to speak to a Solicitor in detail to obtain further information.
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