Wills and Estates Lawyers: directory of firms

The application is made to the Supreme Court probate registry in the relevant state, supported by the original will, a death certificate, an inventory of assets and liabilities, and an affidavit from the person applying. Most states require an advertisement of the intention to apply before the application is filed.

Electronic filing is now standard in several states; Victoria uses RedCrest-Probate for probate applications, and the Supreme Court publishes a questionnaire to help work out what type of grant to apply for and an optional service for small estates.

Once granted, the executor or administrator collects the assets, pays debts and tax, and distributes the estate. Executors carry real duties, and distributing early, before claims against the estate are resolved, is a personal risk.

Preparing a testamentary instrument is legal work. In Victoria, non-lawyer conveyancers are expressly not permitted to prepare a testamentary instrument, create, vary or extinguish a trust, or apply for a grant of probate or letters of administration, because none of those things fall within conveyancing work under the Conveyancers Act 2006.

Public trustee offices in each state and private trustee companies also prepare wills and administer estates, and they are regulated separately from law practices. Whichever route you take, the person drafting should be identifiable and accountable, and you should know who holds the original document.

Every state has family provision legislation allowing eligible people to apply to the court for further provision from an estate, and the categories of eligible applicant and the time limits for applying differ between jurisdictions. These claims are the most common reason an estate takes years rather than months.

Other disputes concern capacity at the time the will was made, undue influence, informal documents put forward as wills, and executors who will not account to beneficiaries. Caveats can be filed with a probate registry to stop a grant issuing while a dispute is resolved.

A will that is clear, properly witnessed, kept with the original findable, and drafted with knowledge of what passes outside the estate prevents most of this.

There are two separate exercises. Drafting a will and powers of attorney is usually a fixed fee, and a practice should tell you what is covered and what a complex structure such as a testamentary trust adds. Administering an estate is charged separately and generally paid out of the estate itself.

The probate registry charges its own filing fee, which is set by each state and scaled in some jurisdictions. Ask about the whole path: grant application, asset collection, tax returns for the deceased and the estate, and distribution. Under the Uniform Law a practice must give you a written costs disclosure with a genuine estimate, updated in writing if the matter changes significantly, which estates often do.

Wills and estates is a searchable area of practice on Victoria's Register of Lawyers, and equity, trusts and finance is listed separately for the more complex structures. Several state law societies also run accredited specialisation in wills and estates.

Use a practitioner in the state where the deceased lived and where the assets are, because the grant is made by that state's Supreme Court and the family provision rules are that state's rules. If there are assets in more than one state or overseas, say so at the first appointment, because it changes the process.