Do I always need a Grant of Probate to manage a deceased estate, or can it be done informally?

Whether a Grant of Probate is required depends on the estate's assets and whether the institutions holding them require a Grant to release those assets. Estates with real estate, bank accounts or shareholdings ordinarily require a Grant of Probate, and executors often apply for one to receive the legal protections it offers when dealing with estate assets.

What is the difference between a Grant of Probate and Letters of Administration if there is no will?

A Grant of Probate is issued to an executor once they prove the deceased left a valid will. Where someone dies without a valid will, or the will did not appoint an executor able to act, the Court grants Letters of Administration instead. Both are referred to as Grants of Representation.

How long does the estate administration process typically take, and what is the 'executor's year'?

A simple estate can typically be administered within 6-12 months of the Grant of Probate. Distributing within the first 6 months carries risk, since an eligible person may bring a Family Provision Claim in that window and the executor could be held personally liable. The 'executor's year' is the related principle that an executor is not required to distribute an estate before 12 months from the date of death.

What assets form part of the estate, and what happens to superannuation, life insurance, and joint property?

Assets held solely or as tenants in common form part of the estate, while jointly held assets pass to the surviving owner by survivorship and bypass the estate. Superannuation is generally paid under a Binding Death Benefit Nomination or at the trustee's discretion rather than automatically forming part of the estate, and life insurance is paid to the named policy beneficiary.

Can an executor be held personally liable for mistakes, unpaid debts, or tax issues during distribution?

An executor who carries out their duties properly is generally entitled to be indemnified from the estate for the deceased's debts. However, an executor can become personally liable if they disregard statutory timeframes, such as distributing within 6 months of the Grant where a claim is later brought against the estate.

Wills & Estate Lawyers Melbourne & Mornington

How We Can Help

Most people put off estate planning until a significant life event like a diagnosis, a death in the family, purchase of a new home or a milestone birthday forces our hand. In Victoria, the cost of not having the right documents falls on the people you leave behind, not on you, and that cost can run into tens of thousands of dollars in disputed estates.

We assist our clients with a full estate plan, including a will that does what you intend, enduring powers of attorney, a medical treatment decision maker appointment, and where relevant a testamentary trust or binding super nomination.

Succession Planning
Estate Administration
Estate Planning
Contest a Will
Family Trusts
Powers of Attorney
Medical Decision Maker Appointments
Guardianship Applications

Succession Planning

Most families and business owners put succession planning to the side until something prompts it and often the cost of leaving it too late is paid by the people you leave behind, not by you.

We put a full plan together: a will, enduring powers of attorney, a medical treatment decision maker appointment, and if your circumstances warrant it, a testamentary trust or a binding superannuation nomination. We review existing plans every 3–5 years and encourage our clients to review their Wills and Estate planning when a significant life event happens, because life moves forward and an old document can stop fitting.

What we do

Wills, from straightforward to complex

Enduring powers of attorney (financial and personal)

Medical Treatment Decision Maker appointments

Testamentary trusts for protection or vulnerable beneficiaries

Binding death benefit nominations for superannuation

Estate plans that take account of family trusts and SMSFs

Reviews and updates after major life events

Coordination with your accountant and financial planner

Company Powers of Attorney

Business succession planning

Discuss your matter

Estate Administration

When someone passes away, the executor (or administrator if there’s no Will) takes on responsibilities under the Administration and Probate Act 1958 (Vic): applying for probate, securing assets, paying debts and tax, dealing with superannuation, responding to any claims, and finalising distribution. For most executors this is unfamiliar work, and it arrives during a challenging time.

We act for executors and administrators across straightforward estates through to complex matters with overseas assets, family trust interests, businesses, or contested probate. You can have us advise the executor or run the administration on their behalf.

What we do

Probate applications, contentious and non-contentious

Letters of administration applications

Executor and trustee obligation advice

Identification, valuation and securing of estate assets

Foreign assets and overseas beneficiary issues

ATO engagement and tax coordination with advisers

Defending claims brought against the estate

Recovery of debts owed to the estate

Real and personal property transfers

Deeds of family arrangement and final distribution

Discuss your matter

Estate Planning

Estate planning is broader than just having a Will. It looks at how each of your assets you own is structured during your lifetime, including your home, your superannuation, your investments, the family trust, your business so that everything reaches the right person, at the right time, and with the right tax outcome.

Many assets do not pass under your Will, including superannuation, jointly-owned property, and family trust assets. We map every asset class, then put the will, testamentary trusts, binding super nominations and EPOAs in place.

What we do

Wills, simple and complex

Testamentary trusts, including special disability trusts

Binding superannuation death benefit nominations

Enduring powers of attorney and medical decision maker appointments

Family provision letters explaining distribution rationale

Asset protection structuring for beneficiaries

Estate plans where you control a family trust or SMSF

Cross-border estate planning where assets are overseas

Plan reviews and updates after life events

Coordination with your accountant and financial planner

Discuss your matter

Contesting a will in Victoria

Will disputes can run across three main categories: family provision (inheritance) claims under Part IV of the Administration and Probate Act 1958, challenges to the validity of a will (lack of testamentary capacity, undue influence, fraud, improper execution), and disputes about how an executor or trustee is conducting an administration.

Family provision applications must be filed within 6 months of the grant of probate, with limited extension. As the premier will dispute lawyers in Melbourne, we act for executors and trustees defending claims, and for beneficiaries, partners, children and other eligible applicants bringing them. Most matters resolve at mediation; the ones that don’t go to the Supreme Court of Victoria.

What we do

Family provision (inheritance) claims

Will validity challenges; capacity, undue influence, fraud

Will interpretation, construction and rectification claims

Lost-will applications and probate in solemn form

Executor and trustee misconduct and removal disputes

Trust administration and accounting disputes

Tracing and recovery of trust assets

Power of attorney misuse claims

Equitable claims against estates

Judicial advice and court declarations

Discuss your matter

Family Trusts

A family trust is only as good as the deed that governs it and the way the family operates it.

We set up new discretionary family trusts, audit and update existing deeds, design appointor and trustee succession, and act in trustee-versus-beneficiary disputes. Tax and stamp duty advice runs in parallel through your accountant, so the duty consequences are factored in before any deed change is signed.

What we do

Setting up new family trusts

Reviewing existing trust deeds and identifying issues

Trust deed variations and amendments

Planning trustee and appointor succession

Trustee duty advice if you are acting as trustee

Trust distribution decisions and resolutions

Trust vesting, wind-up and restructure

Disputes between trustees and beneficiaries

Integrating trust succession into your estate plan

Coordination with your accountant on tax and stamp duty

Discuss your matter

Powers of Attorney

An Enduring Power of Attorney (EPOA) is the document that lets someone you trust make decisions for you in Victoria if you lose capacity. The Powers of Attorney Act 2014 (Vic) recognises three separate appointments: Enduring Power of Attorney (Financial) for legal and financial decisions, Enduring Power of Attorney (Personal) for lifestyle decisions, and Medical Treatment Decision Maker for medical decisions.

Each appointment can sit with the same person or different people. We prepare EPOAs, advise on the right scope for your circumstances, review and update existing documents, and act on revocation. We also handle VCAT disputes when there are concerns about how an attorney is exercising their powers.

What we do

Enduring Power of Attorney (Financial) preparation

Enduring Power of Attorney (Personal) preparation

Medical Treatment Decision Maker appointments

General (non-enduring) powers of attorney

Reviews and updates of existing EPOAs

Revocation of EPOAs

VCAT applications about attorney conduct

Disputes about how an attorney is exercising powers

Coordination with wills and broader estate planning

Discuss your matter

Medical Decision Maker Appointments

An Appointment of Medical Treatment Decision Maker names the person who will make medical decisions for you if you lose the capacity to make them yourself. In Victoria, the appointment sits under the Medical Treatment Planning and Decisions Act 2016 and operates separately from your other powers of attorney.

We prepare the appointment, review older documents to confirm they still reflect your intentions, and act on revocation or replacement.

What we do

Appointment of Medical Treatment Decision Maker preparation

Coordination with wills and broader estate planning

Reviews and updates of existing appointments

Revocation of existing appointments

Replacement of an existing decision maker

Advice on the powers and limits of the role

Discuss your matter

Guardianship Applications

When somebody loses capacity to make their own personal or financial decisions, and there is no Enduring Power of Attorney already in force, an application can be made to the Victorian Civil and Administrative Tribunal (VCAT) for a Guardian to make lifestyle decisions, an Administrator to make legal and financial decisions, or both, under the Guardianship and Administration Act 2019.

Capacity loss can stem from dementia, acquired brain injury, intellectual disability or mental illness, and it can affect a person at any age.

What we do

Guardianship and administration order applications to VCAT

Reassessment and review hearings

Mediation and VCAT hearing representation

Concerns about the represented person’s decisions

Concerns about how a Guardian or Administrator acts

Breach of duty applications against a Guardian

Recovery of misappropriated funds

Removal and replacement of a Guardian or Administrator

Coordination with EPOAs and estate planning

Frequently Asked Questions

Disclaimer : The information contained in these FAQS is of a general nature only and does not constitute legal advice. It has been prepared by KPA Lawyers without considering your specific objectives, circumstances or needs, and should not be relied on as a substitute for tailored legal advice.

Whether a Grant of Probate is required is dependent upon the nature of the assets of the estate, and whether institutions holding estate assets require a Grant of Probate in order to release those assets. Estates that consist of real estate, bank accounts or shareholdings, ordinarily require a Grant of Probate. An Executor will often apply for a Grant of Probate to receive the protections that are offered to an Executor by law, in dealing with the estate assets.

A Grant of Probate is issued to the Executor, when the Executor proves the deceased left a valid Will. Where the deceased did not leave a valid Will (dying ‘intestate’), Letters of Administration are granted by the Court instead. The Court will also grant Letters of Administration where a Will is left, that did not appoint an Executor or the appointed Executor or Executors are unable to act (for example, because of an incapacity). Both Grants of Probate and Letters of Administration is referred to as Grants of Representation.

There is no exact answer for how long an estate administration process may take, however, depending on the contents of the Will, the estate administration process for a simple estate could be completed anywhere between 6-12 months from the Grant of Probate.

It is not recommended to distribute during a 6 month period following the Grant of Pronate or Letters of Administration, as an ‘eligible person’ may make a Family Provision Claim (challenge the Will) for provision from a deceased persons estate. If distributions of the estate are made during this 6 month period, the Executor may be held personally liable if an eligible person brings a claim against the estate.

Separately, there is a legal principle that an Executor is not required to distribute an estate before a period of 12 months following the deceased’s death. This principle is called the ‘executor’s year’. It recognises that the Executor needs time to make enquiries and cannot be compelled to distribute the estate immediately, where they are ensuring all of their duties are being carried out.

All assets held in the sole personal name or in which they have a share (tenants in common) form part of the estate of the deceased person. Any jointly held assets, such as bank accounts or property for example, will transfer to the other owner by the ‘rule of survivorship’, and bypasses a person’s estate. Superannuation does not automatically become an asset of a person’s estate. Superannuation will be paid as part of a ‘superannuation death benefit’ pursuant to a Binding Death Benefit Nomination (BDBN) or if there is no Binding Death Benefit Nomination, then at the discretion of the Trustee of the relevant superannuation fund.

Life insurance will be paid to the beneficiary of the life insurance policy. If the beneficiary is the deceased, then it Will form part of the residuary estate of the deceased and will be distributed in accordance with the will or if there is no Will pursuant to intestacy rules.

An Executor must carry out their duties diligently. Generally, they owe a duty under the law to ensure all debts of the deceased or estate are paid first from the assets of the deceased, before distributions or transfer of property to beneficiaries. The law recognises this role can be difficult and the Executor is entitled to be ‘indemnified’ from the estate (the estate meets the cost of the deceased’s debts) and should not be personally liable where they have carried out their duties appropriately.

However, an Executor can be personally liable where they disregard certain statutory time frames, such as being held to be personally liable with the estate, if they make distributions from a deceased estate within 6 months following a Grant of Probate or Letters of Administration, and a person seeks to bring a claim against the estate.

In respect of debts, it is recommended an Executor consider a ‘Creditor’s Notice’ that offers them protection from liability where they publish the requisite notice, and invite any person with a debt to come forward, otherwise they will distribute the estate following expiry of that notice.

Why KPA Lawyers for Wills, Estates and Probate

The firm that puts your outcome first

We combine senior expertise with genuine care, your matter will be handled by an experienced lawyer every step of the way.

Senior ESTATE lawyers on every matter

A senior lawyer is involved at every stage, working alongside our wider team to ensure your matter is handled the right way.

Work with lawyers you can trust

Our wills and estates team is experienced in complex estate planning and can advise you on the best way to structure your will to protect those you love most.

Three conveniently located offices

Visit our Sandringham or Mornington offices or meet with us in the Melbourne CBD, whichever location is most convenient for you.

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