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Probate Fees Victoria – Notable Increases in November 2024

In November 2024, the Victorian Government introduced notable increases to probate filing fees, bringing significant financial implications for executors and affecting estate planning strategies. These new fees apply based on the value of the estate, with larger estates now subject to substantially higher charges. The changes, effective from November 18, 2024, have introduced a sliding scale fee structure. For estates valued over $7 million, the fee has now reached $16,803—an increase from the previous fee of $2,318.90. Meanwhile, estates valued below $250,000 remain exempt from probate fees. This development has sparked discussion about how executors will manage the financial obligations and how these fees might shape estate planning decisions.

Background on Probate and Its Significance

Probate is the legal process of validating a deceased person’s will and granting authority to an executor to administer the estate. During probate, an executor is responsible for settling debts, distributing assets according to the will, and ensuring all legal obligations are met. Typically, probate includes filing necessary documents with the court, such as a Grant of Probate or Letters of Administration, if no will is available. This court-issued grant allows the executor to legally access and manage the deceased’s assets, ensuring beneficiaries receive their rightful inheritance.

Probate fees have traditionally been part of the costs associated with estate administration, covering court resources and administrative expenses. However, the recent increases represent a sharp departure from previous rates, resulting in what many perceive as a significant financial burden on executors, especially for estates with high asset values. Recent increases to probate fees Victoria have increased the financial burden.

New Probate Fee Structure and Its Financial Implications

Under the revised structure, the probate fees in Victoria are tiered according to estate value. Key fee adjustments include:

• $0 for estates valued at $0–$249,999.99
• $514.40 for estates valued at $250,000–$499,999.99, up from $68.60
• $1,028.80 for estates valued at $500,000–$999,999.99, up from $367.40
• $2,400.50 for estates valued at $1,000,000–$1,999,999.99, up from $685.90 
• $4,801 for estates valued at 2 million to $3 million, up from $1502.40
• $7,185.20 for estates valued at $3 million to $5 million, up from $2,318.90
• $12,002.60 for estates valued at $5 million to $7 million, up from $2,318.90
• $16,803.60 for estates valued at $7 million or more, up from $2,318.90

These steep increases mean that executors handling high-value estates must secure a greater sum upfront when applying for probate, as court rules prevent access to estate funds until the grant is received. As a result, executors may need to use personal funds or secure loans, expecting reimbursement only after probate is granted. This increased cost burden has raised concerns among legal professionals and executors, as it could place undue financial strain on those responsible for administering estates.

Challenges for Executors and Potential Financial Strain

Impacts on Estate Planning Resulting from Increases to Probate Fees

Executors play a pivotal role in managing the probate process, but the need to pay significant fees before accessing estate assets presents unique challenges. Executors, often family members or close friends of the deceased, may not have the necessary funds to cover these upfront fees, especially if the estate is substantial. This could lead some executors to decline the role, potentially delaying the estate administration process. In cases where executors do proceed, they may need to seek financial assistance, such as personal loans, to cover the probate fees, which could add to their financial stress and responsibilities.

Legal experts have expressed concerns that the new fee structure may deter individuals from accepting executor roles, particularly for high-value estates. This shift could lead to greater reliance on professional fiduciaries, which could incur additional costs and impact the overall timeline of estate administration.

In light of the probate fee increases, individuals and families are expected to review and possibly modify their estate planning strategies to minimize these fees. Estate planning often involves planning for the efficient and tax-effective transfer of assets. With the revised probate fees, estate owners may look for ways to reduce the value of assets subject to probate, thereby lowering the associated costs for their executors and beneficiaries.

Some strategies for minimising probate fees may include:

• Transferring Assets Outside of Probate: Individuals might consider transferring certain assets into trusts, joint ownership arrangements, or designated beneficiaries outside the estate. By holding assets in this manner, they may avoid probate altogether, as these assets are typically transferred directly to beneficiaries without the need for a court grant.
• Revising Ownership Structures: Property, for instance, can be held jointly with a right of survivorship, meaning it automatically passes to the surviving owner without probate. This approach is often used for real estate and financial accounts. It can reduce the estate’s overall value, thus potentially decreasing probate fees.
• Gifting During Lifetime: Some individuals may choose to gift significant assets to their beneficiaries during their lifetime. Although this strategy has potential tax implications, it can reduce the estate’s value at the time of death, leading to lower probate fees. However, individuals should carefully consider the tax consequences of gifting, as well as any potential impact on their financial security.
• Charitable Giving: Some may opt to include charitable bequests in their estate plans, which can lower the estate’s overall taxable value and potentially reduce the probate fees while supporting meaningful causes.

While these strategies can effectively reduce probate-related costs, they may also complicate estate plans. For instance, transferring assets outside of probate can make it harder to ensure that an estate is distributed according to the deceased’s wishes, as the will would not cover these assets.

Broader Implications of Probate Fee Increases in Victoria

These fee adjustments reflect a broader trend of increasing probate fees in various jurisdictions. Governments often use probate fees as a means of generating revenue, and Victorian officials have stated that these changes help cover the administrative costs of probate services. However, some legal professionals argue that these increases disproportionately impact grieving families and those with larger estates, ultimately raising questions about the equity of probate fees.

The new fees may also affect the way individuals perceive estate planning, pushing them toward strategies that could complicate the probate process. While some see the changes as a necessary adjustment to maintain the efficiency of probate services, others feel that they unfairly burden families during an already challenging time.

The recent increase in Victorian probate fees presents a new challenge for executors and families involved in estate administration. With fees now linked to estate value, individuals handling larger estates face higher upfront costs, potentially impacting their willingness to serve as executors. As a result, more people are likely to seek ways to minimize probate fees through adjusted estate planning strategies, which may include trusts, gifting, or revised ownership structures.

Summary of new probate fees Victoria

Executors and estate planners are advised to seek professional guidance to navigate these changes effectively. By proactively managing estate plans in light of the updated fees, individuals can help reduce the financial impact on their loved ones and ensure a smoother probate process. These changes underscore the importance of thoughtful estate planning, especially in a climate where probate fees are likely to remain a significant consideration in the administration of high-value estates.

Contact Us for Probate Legal Services

With over 40 years of experience in wills and estates and probate matters, Velos & Velos lawyers can assist you with deceased estates and probate matters. We can assist with probate applications to ensure you get the best outcome. Contact us on 03 8379 1000 or use the Contact link on this page to get in touch. We are conveniently located in the Melbourne CBD, near the Supreme Court and the Victorian Probate Office.

As wills and estates lawyers in Melbourne, we offer a full range of services. Learn about our services:

Will Dispute Lawyers

Probate Lawyers

Wills Lawyers

Also, read our blog articles to learn more about:

Letters of Administration in Victoria

Contesting a Will in Victoria.

De Facto Relationships in Australia: Understanding The Legal Implications

A de facto relationship in Australia holds significant legal weight, particularly when it comes to matters such as property, finances and children. Understanding this type of relationship and its legal implications can help couple/partners navigate their rights and responsibilities. This article delves into the definition of a de facto relationship, its legal standing in Australia and the implications of a relationship that has lasted at least six months. It also explores frequently asked questions about this type of relationship in Australia.

What is a De Facto Relationship?

The term “de facto relationship” refers to a couple/partners living together on a genuine domestic basis without being married. According to the Australian Family Law Act 1975, a de facto relationship exists when two people, regardless of gender, are in a relationship that resembles marriage but are not legally married.

De Facto Relationship Definition

A de facto relationship is more than just cohabitation. Australian law takes into account various factors, such as:

• The duration of the relationship: How long the couple has been living together.
• Nature of the household: Whether the couple shares domestic responsibilities like rent, groceries and bills.
• Sexual relationship: The presence of an intimate relationship.
• Financial dependency: Whether the couple shares or depends on each other financially.
• Property ownership: Whether they own assets together or jointly.
• Public perception: Whether the couple presents themselves as a committed couple publicly to friends and family.
• Children: If the couple has any children together.

The combination of these factors determines if a relationship qualifies as de facto under the law, especially if the relationship breaks down or if legal matters arise regarding property or children.

Legal Implications of a De Facto Relationship in Australia

In Australia, the legal ramifications closely align cross states of Australia but may have state-specific considerations. When couples are in a de facto relationship, they may be subject to the same laws as married couples regarding:

Property Division

When a de facto relationship ends, one or both parties may apply for a property settlement through the Federal Circuit and Family Court of Australia, which applies similar principles used in divorce cases to divide assets and debts.

Property settlements consider factors like:

• The financial and non-financial contributions of each party.
• The financial circumstances and employment of each party.
• The future needs of each party (including age, health and capacity to earn income).
• The length of the relationship.

Both parties may need to come to an agreement about how assets are divided, or the court can impose a settlement if they cannot reach a consensus.

Spousal Maintenance

Like married couples, individuals in a de facto relationship may claim spousal maintenance if they cannot support themselves post-separation. The court may order the other party to provide financial support based on their capacity to pay and the needs of the claimant.

De Facto Relationships and Children

Couples in these relationships have the same rights and responsibilities towards their children as married couples. If the relationship ends, both parents remain responsible for the care, welfare and financial support of their children. The court may intervene if necessary to ensure that the child’s best interests are served, especially in matters of custody and visitation rights.

Time Limits for De Facto Claims

A former partner in a de facto relationship must apply for a property settlement or spousal maintenance within two years of the relationship ending. Failing to do so may affect the individual’s rights to a fair division of assets or financial support.

Duration of the Relationship: Is Six Months Enough?

One of the common questions is: Does living together for six months qualify as a de facto relationship?

While there is no set time frame for a de facto relationship in Australia, the length of the relationship is an essential factor. Generally, a relationship lasting at least two years is seen as long enough to be considered de facto. However, there are exceptions to this rule.

If the couple has children together or one partner made significant contributions (financial or otherwise) to the relationship, even a shorter relationship may be regarded as de facto under Australian law.

For example, in Victoria, a couple living together for just six months may still be considered in a de facto relationship if they share finances, present themselves as a couple publicly and demonstrate other factors associated with a long-term committed relationship.

De Facto Relationships Australia: Six Months

If you’re living together in Australia for six months and meet the other criteria, you could potentially be recognized as being in a de facto relationship. It’s not just about time but also the overall nature of the relationship. This is an important point, especially for couples who may assume that a de facto relationship automatically requires a long period of cohabitation. In some cases, even six months can be enough if there are additional factors like shared property or financial dependency.

Rights in Victoria

Living in a de facto relationship comes with certain rights, which often mirror those of married couples. Here’s an overview of some key rights under Victorian law:

1. Property Rights: Both parties have the right to a fair division of assets and property, regardless of who holds legal ownership.
2. Inheritance Rights: In the absence of a will, a surviving de facto partner may have inheritance rights, similar to a spouse.
3. Health and Medical Decisions: A de facto partner may be entitled to make important decisions on behalf of their partner, such as medical care decisions.
4. Superannuation: De facto partners may have rights to a share of their partner’s superannuation, similar to married couples, in case of separation or death.

How to Prove a De Facto Relationship in Australia

Proving a de facto relationship is vital in cases where legal action is required, such as in property disputes or spousal maintenance claims. Evidence that may be used includes:

• Joint bank accounts or shared financial documents.
• Proof of living arrangements (rental agreements or mortgage statements).
• Statements from friends, family, or co-workers verifying the relationship.
• Travel documents showing shared holidays or life events.
• Correspondence and photographs showing the nature of the relationship.

Summary

De facto relationships in Australia, including in Victoria, are legally recognized and come with specific rights and obligations. Couples/partners should understand that time alone does not determine whether a relationship is de facto. Instead, various factors, including financial dependency, shared assets and the public perception of the relationship, are taken into account. Whether you’ve been living together for six months or several years, if your relationship fits the de facto criteria, it is crucial to understand your legal standing, especially in matters of property division, spousal maintenance and children.

Navigating the legal framework surrounding de facto relationships can be complex, so seeking professional legal advice is advisable if you need clarity on your specific situation.

Contact us

If you have questions about whether your relationship is de facto and the legal implications, Velos & Velos Lawyers provides legal advice on all aspects of family law. We’ve been helping our clients understand their legal rights.

Contact us on 03 8379 1000 or use the Contact Us link below to discuss your individual circumstances and how we can assist you.

As family lawyers in Melbourne, we can assist you with a range of family legal matters, including:

• Wills and Estates – learn more about our services as Wills and Estates Lawyers in Melbourne.
• Family Law – visit our Family Lawyers Melbourne page for a complete description of our family law services.

·        Spousal maintenance – learn more in Spousal Maintenance in Australia – A Short Guide.

• Property Settlement – learn more about our services as Property Settlement Lawyers in Melbourne.

Understanding Calderbank Offers and Their Impact on Legal Costs

Calderbank Offers are a strategic tool used in litigation to encourage parties to settle disputes outside of court. Named after the English Court of Appeal decision in Calderbank v Calderbank (1975), this type of settlement offer plays a pivotal role in managing the legal costs associated with legal proceedings. They can significantly influence the application for indemnity costs, the question of costs, and the outcome for both successful and unsuccessful parties. This article delves into the key aspects of Calderbank Offers, including their nature, purpose, and implications for both parties in litigation, particularly in relation to costs.

What is a Calderbank Offer?

A Calderbank Offer is a type of settlement offer made on a “without prejudice save as to costs” basis. This means that while the content of the offer cannot be disclosed to the court before the question of liability is decided, it can be revealed when determining the question of costs. Essentially, it is a written offer to settle a dispute on specific terms, with the understanding that the offeror intends to use it to influence the court’s decision on costs if the matter proceeds to trial.

What is a Calderbank Letter?

A Calderbank letter is the written communication in which the Calderbank offer is conveyed to the other party. Essentially, it is the medium or format through which the terms of a Calderbank offer are presented.

The letter typically outlines the settlement terms, the time frame for the recipient to accept the offer, and the potential cost consequences if the offer is rejected. It might also include other details like the reasoning behind the offer and any supporting arguments that might persuade the recipient to accept.

The Significance of Calderbank Offers in Legal Proceedings

Calderbank Offers can serve as a costs protection mechanism for parties involved in legal proceedings. If a party makes such an offer and the opposing party rejects it, this decision can impact the award of indemnity costs after the court’s final decision. The central idea is that if the rejecting party’s outcome at trial is not significantly better than the terms of the Calderbank Offer, the court may order them to pay the other party’s legal costs on an indemnity basis from the time the offer was rejected.

Indemnity Costs vs. Standard Costs

The distinction between standard costs and indemnity costs is crucial when discussing Calderbank Offers. Generally, in litigation, costs are awarded on a standard basis, where the successful party recovers a portion of their costs from the unsuccessful party. However, a Calderbank Offer can be used to argue for costs on an indemnity basis, which allows the successful party to recover a greater proportion of their costs.

An application for indemnity costs is often made when the successful party believes that the opposing party acted unreasonably in rejecting a reasonable settlement offer. In such cases, the court considers whether the refusal to accept the Calderbank Offer was justified based on the prospects of success of the case at the time the offer was made.

Criteria for a Successful Offer

For the offer to influence the question of costs effectively, it must meet certain criteria:

1. Genuine Compromise: The offer should represent a genuine compromise between the parties. It should not merely reflect the offeror’s full entitlement, as the court will consider whether the offer was a genuine attempt to settle the dispute.
2. Reasonable Time: The party receiving the offer must be given a reasonable time to consider it. This period of time should allow them to seek legal advice and properly assess their prospects of success.
3. Clarity of Terms: The offer must be clear in its terms, leaving no ambiguity about what is being offered and the consequences of rejection.

Impact of Calderbank Offers on the Award of Indemnity Costs

When determining whether to award indemnity costs, courts assess the reasonableness of the offer and the conduct of both parties. If a party makes a reasonable offer and the opposing party unreasonably rejects it, the offering party may argue that the rejection warrants an award of indemnity costs. The successful party can then apply for these costs from the date the offer was rejected, placing the unsuccessful party in a less favourable position regarding the costs of the litigation.

The English Court of Appeal has emphasised that courts should exercise discretion when awarding costs and consider the entire context of the Calderbank Offer. This includes examining whether the party rejecting the offer had realistic prospects of success at trial, as well as whether the terms of the offer were fair and reasonable.

The Role of Calderbank Offers in Cost Protection

One of the strategic benefits of making a Calderbank Offer is cost protection. A party that makes an offer seeks to protect itself from adverse cost orders by demonstrating to the court that it made reasonable efforts to settle the dispute before trial. If the opposing party fails to accept an offer that they later cannot improve upon in court, they may be ordered to pay the offeror’s costs on an indemnity basis, thus increasing the financial burden on the unsuccessful party.

This protection applies even if the offering party does not fully succeed in the case as long as the terms of the offer are more favourable than the outcome at trial. For example, if the successful party made a Calderbank Offer for a settlement amount, and the court awards a lesser amount to the other side, the successful party could argue for indemnity costs from the date of rejection.

Offers of Compromise vs. Calderbank Offers

It is important to distinguish Calderbank offers from offers of compromise. While both serve to encourage settlement and can influence the question of costs, they operate under different procedural rules. Offers of compromise are usually made in accordance with formal court procedures, whereas Calderbank Offers are more flexible and can be tailored to the specific circumstances of a case.

In some jurisdictions, offers of compromise may carry automatic cost consequences if rejected, whereas Calderbank Offers require the court’s discretion when determining whether to grant indemnity costs. This makes it a valuable option when a party wants to negotiate on terms that might not align with the formal requirements of an offer of compromise.

Practical Considerations

When making a Calderbank Offer, several factors should be considered to ensure its effectiveness:

• Timing: Making the offer at the right stage in litigation is critical. An early offer may be viewed as more reasonable and indicative of a willingness to settle, while a late offer may be seen as an attempt to pressure the opposing party.
• Prospects of Success: The party making the offer should evaluate their prospects of success realistically and craft the offer in a way that presents a fair resolution of the dispute.
• Communication: It is important to clearly communicate that the offer is being made on a “without prejudice save as to costs” basis and outline the potential cost implications if the offer is rejected.

Summary

Calderbank Offers provide a strategic advantage in litigation, particularly in relation to managing legal costs. By offering a genuine compromise and granting the opposing party a reasonable time to consider the settlement, parties can enhance their position when the court addresses the question of costs. A well-crafted offer can significantly influence the financial outcome of a dispute. Understanding the nuances of Calderbank Offers and their implications in different legal contexts can empower parties to make more informed decisions in their legal strategies, potentially reducing the uncertainties and expenses of going to trial.

Contact Us

At Velos & Velos Lawyers, we play a crucial role in assisting with Calderbank offers by providing strategic advice on when and how to make such offers to maximise their effectiveness. We draft Calderbank letters to ensure the terms are clear, reasonable, and compliant with legal standards, making the offer more persuasive and likely to influence the court’s decision on costs.

We can also assess the prospects of success of the case and advise you on the potential costs protection benefits of making or accepting a Calderbank offer. Additionally, we can present arguments in court regarding the reasonableness of the offer if it is rejected, helping to secure a favourable award of indemnity costs for their clients.

As experienced lawyers in Melbourne, we can assist you with a range of legal requirements, including:

• Property Settlement – learn more about our services as Property Settlement Lawyers in Melbourne.
• Wills and Estates – learn more about our services as Wills and Estates Lawyers in Melbourne.
• Family Law – visit our Family Lawyers Melbourne page for a complete description of our family law services.
• Bankruptcy Law – visit our Bankruptcy Lawyers Melbourne page for a complete description of our family law services.
• Insolvency – visit our Insolvency Lawyers Melbourne page for more information on our services.
• Probate – see our Probate Lawyers Melbourne page for information on the probate process and our probate legal services.

Contact us on 03 8379 1000 or use the Contact Us link below to get in touch.

Letters of Administration in Victoria: A Short Guide

Navigating the legal complexities following the loss of a loved one can be daunting, particularly when it comes to dealing with their estate. In Victoria, if a person dies without a valid will (dying intestate), the process of managing and distributing their estate is governed by obtaining what is known as Letters of Administration.

What are Letters of Administration?

Letters of Administration are a legal document granted by the Supreme Court of Victoria. They authorise a person, known as the ‘administrator’, to manage and distribute the deceased person’s estate according to the rules of intestacy (which apply when there is no will). This process ensures the assets of the deceased person are handled responsibly and distributed to their rightful heirs.

When are Letters of Administration Required?

This legal authority is required in situations where:

• The deceased person did not leave a will.
• The will left by the deceased is deemed invalid (for reasons such as lack of proper witnesses or questions of capacity).
• The appointed executor or executors in the will are unable or unwilling to act.

Who Can Apply for Letters of Administration?

In Victoria, the following people are typically eligible to apply:

• The deceased’s spouse or domestic partner
• Their children
• Other close relatives such as parents or siblings.

The law prioritises spouses and children, but in their absence, other relatives may apply.

The applicant must also be over 18 years of age.

The Process of Applying for a Letter of Administration

Publish a Notice of Intention – Before applying, you need to publish a notice of your intention to apply for Letters of Administration on the Supreme Court of Victoria’s website.

This is to inform and allow any potential claimants to the estate to come forward.

Gather Necessary Documents – This includes the death certificate, proof of your relationship to the deceased, and an inventory of the deceased’s assets and liabilities.

Complete the Application Forms – Provide documents to your Lawyers to accurately complete and file with the Court.

File the Application – Your Lawyers submit the application along with the required documents and the prescribed fee to the Probate Office of the Supreme Court.

Court Assessment – The Court will review your application. If everything is in order, Letters of Administration will be granted.

What Happens After Receiving Letters of Administration?

Once granted, the administrator is responsible for:

• Securing and managing the deceased’s assets
• Paying any debts or taxes owed by the estate
• Distributing the remaining assets according to the rules of intestacy.

Getting Professional Advice is Key

Velos & Velos with over 40 years’ experience are ready and able to help you.

Letters of Administration play a crucial role in the orderly management of estates where no valid will exists.

Understanding this process in Victoria is vital for anyone who finds themselves responsible for administering a deceased person’s estate.

Given the complexities and legal responsibilities involved, it’s advisable to seek legal advice or assistance from a professional experienced in estate law such as Velos & Velos Lawyers. They can help navigate the process, ensuring all legal obligations are met, overcoming complexities and confusion or mistakes, preventing legal pitfalls and consequences, and reducing stress during a difficult time.

Velos & Velos Lawyers for Expert Legal Assistance with Letters of Administration in Victoria

Losing a loved one is never easy, and the legal responsibilities that follow can add to the stress. If you find yourself needing to manage a loved one’s estate without a will, you are not alone. At Velos & Velos Lawyers, we are experts in providing compassionate and professional legal assistance with Letters of Administration in Victoria.

When someone passes away without a will, their estate must be managed and distributed according to intestacy laws. Obtaining Letters of Administration is a crucial step in this process. The highly experienced legal team at Velos & Velos Lawyers is here to guide you through every aspect, ensuring smooth and compliant management of the deceased’s estate.

Our services include:

• Assessing your eligibility – We help determine your eligibility to apply for Letters of Administration.
• Preparing and filing the application – Our team meticulously prepares and files the necessary documents with the Supreme Court of Victoria.
• Managing the estate – From securing assets to paying off debts and distributing the estate, we handle estate administration with care, sensitivity and professionalism.
• Providing legal advice and support – We provide clear, practical legal advice at every step, helping you understand your responsibilities and rights.

Why Choose Velos & Velos Lawyers?

There are many reasons to choose us for help with Letters of Administration:

Expert knowledge – Our lawyers are well-versed in Victorian estate laws and have extensive experience with Letters of Administration.

A personalised approach – We understand that every situation is unique. Our services are tailored to meet your specific needs.

Compassionate service – We approach every case with empathy and respect, understanding the emotional challenges you may be facing.

Litigation Advice  – We are able to guide and advise you if litigation is necessary to protect your rights and interests.

Competing Interests  – We are able to negotiate competing interests and claims to advise you on your priorities and needs.

Contesting Administration  – We are able to advise you if you wish to contest and challenge the appointment of an administrator.

Efficient and thorough – Our goal is to make the process as straightforward, thorough and stress-free as possible without compromising on diligence.

We’re conveniently located in the Melbourne CBD near the Supreme Court of Victoria and are close to public transport by train, tram or bus and parking facilities.

Let Us Help You

The responsibilities of administering an estate without a Will can be daunting, time consuming and stressful, but you don’t have to handle it alone.

Contact Velos & Velos Lawyers today on (03) 8379 1000 or use the Contact Us page link above to get in touch for expert assistance with Letters of Administration in Victoria.