In Victoria, the administration of a deceased person’s estate is carefully regulated to ensure that the deceased’s wishes are respected, that debts are paid, and eligible persons receive proper provision. Understanding who can make a claim, the process involved and the relevant laws is crucial to protecting your rights.
What You Need To Know About Making A Claim Against A Deceased Estate
When a loved one passes away, questions about their estate can arise quickly, often during an already difficult and emotional time. The death of a person can leave family members, dependents, and others unsure about what they are entitled to.
A deceased’s household, savings, property and other assets, collectively known as the estate, may be distributed according to a Will or under intestacy laws if no valid Will exists. In some cases, the deceased left a Will that does not adequately provide for all eligible persons.
Part IV Family provision claims, often called ‘contesting a Will,’ allow certain people to apply to the Supreme Court to receive proper provision from the estate. These claims ensure that if a person dies leaving assets, individuals who relied on the deceased for support are not unfairly left without money or resources.
Who Can Make A Claim
In Victoria, only certain people are considered eligible to make a claim against a deceased estate. Generally, this includes:
- Spouses or domestic partners
- Children, including adopted children or stepchildren
- Former spouses or partners, in some circumstances
- Persons wholly or partly dependent on the deceased
For example, if a child dies and leaves a surviving spouse or dependent children, those dependents may also have rights to make a claim on behalf of the deceased’s estate. A person named in a Will does not automatically make them the only claimant; eligibility depends on relation, dependency and moral obligation.
A person entitled to make a Part IV claim (family provision) or claim under intestacy laws must act within strict time limits, as outlined in the Administration and Probate Act 1958 (Vic).
Eligibility & Time Limits To Make A Claim
Eligibility is strictly defined by law, and the type of relationship an individual had with the deceased person.
A person making a claim generally must be:
- A spouse or domestic partner at the time of the deceased’s death
- A child or stepchild of the deceased
- A dependant who relied on the deceased for financial support
Time limits are critical, too. In Victoria, a claim must be lodged within six months of the Grant of Probate or Letters of Administration. Acting promptly is essential because a claim lodged after this period may only be allowed in exceptional circumstances, such as if the claimant was unaware of the deceased’s death or if the estate has not yet been distributed.
Missing this deadline can seriously affect a person’s ability to recover money or assets from the estate. Early legal advice can assist in understanding eligibility and preserving rights.
Role Of The Executor & Grant Of Representation
The executor, the person named in the Will, is responsible for administering the deceased’s estate. This includes collecting the deceased’s money and assets, paying debts, funeral expenses, taxes and distributing property according to the Will or intestacy laws.
If no executor is named, the court may appoint an administrator to handle the estate. A Grant of Representation, such as Probate or Letters of Administration, is a legal document issued by the court giving the executor or administrator authority to act on behalf of the estate.
The executor must maintain an account of all estate transactions and act in the best interests of the estate and its beneficiaries. This ensures that the deceased’s household, money, and property are managed properly.
The Family Provision Claim Process
The process of making a claim generally follows these steps:
- Notice of claim: A potential claimant may notify the executor that they intend to make a claim. While not legally required, it helps protect the claimant’s interests if the estate is being distributed.
- Filing a summons and affidavit: The claim is formally lodged with the Supreme Court of Victoria. The affidavit sets out the claimant’s relation to the deceased, their financial needs and supporting evidence.
- Mediation: The Court often requires mediation to encourage settlement before a full hearing. Most claims are resolved at this stage, saving time, money, and stress.
- Court hearing: If mediation fails, a judge examines the claim. The court considers the size and nature of the deceased’s estate, the claimant’s financial needs, their relation to the deceased and the interests of other beneficiaries.
For example, if the deceased left a Will giving money primarily to one child but another child was wholly dependent on the deceased, the court may adjust the distribution to provide fair provision.
Administration Of The Estate
Administration of the estate refers to the process of managing a deceased person’s assets and liabilities. It involves collecting the deceased’s money and property, paying debts and taxes and distributing the remaining estate according to the Will or intestacy laws. Executors or administrators carry out these duties on behalf of the estate, ensuring the deceased’s wishes and legal obligations are fulfilled.
Administering the estate involves:
- Collecting assets, including money, property and household goods
- Paying debts, taxes and funeral expenses
- Distributing the remaining estate according to the Will or intestacy laws
The executor or administrator must act in good faith on behalf of the estate, keeping accurate accounts and ensuring that all eligible persons are considered. If disputes arise, the court may issue orders to protect claimants or adjust distributions.
Estates Without Claimants: Bona Vacantia
In some cases, if no eligible person claims an estate, or if no executor is available, the estate does not remain idle forever. The State Trustees of Victoria may step in to administer the estate. If no beneficiaries exist under intestacy rules, the estate is eventually treated as bona vacantia, which is ownerless property that passes to the State of Victoria.
Even many years after a person’s death, an estranged family member may still apply to administer the estate or, in exceptional cases, to make a family provision claim. However, once the estate has been finalised or passed to the State, recovery becomes much more difficult.
How Long Does It Take to Resolve a Claim?
The timeframe varies depending on complexity:
- Mediation: Usually resolved within a few weeks to months.
- Court hearings: Can take six months to a year or more, particularly in complex cases involving multiple beneficiaries or large estates.
- Extended or contested cases: May take 18 months or longer if additional evidence or appeals are involved.
Early action, mediation and independent legal advice help to ensure that the process runs as smoothly as possible.
Need Assistance Making A Deceased Estate Claim?
Deceased estate claims can be emotional and stressful. Early action is essential to protect your rights and ensure fair provision under Victorian law.
A skilled Probate & Estate Lawyer can assist with:
- Determining if you are entitled to make a claim
- Explaining time limits and eligibility criteria
- Preparing and filing the claim on your behalf
- Assisting with mediation or court proceedings
Managing disputes to achieve a fair outcome
Contact Pearsons Lawyers Victorian estate specialists today on 1300 699 688 or via our contact form for a free chat about your options. We can discuss your circumstances, help you understand your options, and take the first step toward protecting your interests in the claim & distribution process of the deceased’s estate.
