Is there a trick to probate I'm not seeing?
April 17, 2011 5:16 AM   Subscribe

My mother died, and now I need to know what to do about wills and probate and so forth.

It's taken a month or so to get to the point of being emotionally ready to deal with this, but we've had the cremation and a lovely memorial gathering and now it's time to face the paperwork; we've just had an overdue reminder for the gas bill. So I've done a perfunctory web search for probate victoria australia and found a lot of guff about avoiding lawyers' fees by buying our $99 how-to kit.

Surely it can't be that hard? Can I not simply (1) get Mum's solicitor to hand over the will, which I have every reason to believe names me as executor (2) start working through these rules from the top, using the POAS site and the templates listed here under "Probate Forms" as appropriate and (3) walk a folder full of bumf into the Probate Office?

What am I missing that's worth a hundred bucks to find out about?
posted by flabdablet to Law & Government (10 answers total) 1 user marked this as a favorite
The Public Trustee in Victoria has some information that should help, and perhaps discuss with your mother's solicitor.

I'm very sorry for your loss. Best wishes.
posted by bwonder2 at 5:23 AM on April 17, 2011

I'm sorry you're having to deal with the death of a parent and with this too.

If your mum had a solicitor, he or she would probably be a great resource- you might want to discuss their fees (if any) beforehand, but if it was a simple estate my guess is you could easily work through it yourself. You're basically standing in for your mother and carrying on the business that she would have been doing, with the obvious difference that you are winding things down.

I don't know if she had significant things of value or if it is more a case of trying to get the bills paid off - if it's the former, your main headache may be heirs - siblings or other relatives trying to put you in the middle. If there was a will, you follow it and let the chips fall where they may.

If she had more debts than assets, US law is that the estate will pay these things out as far as possible - and whoever's holding the bag is just holding the bag. I would expect AU law is similar. This is important to remember because creditors will try to guilt-trip you into paying them "I know you would want to settle this obligation of your mothers..." baloney.

Also, in the US, the executor is entitled to reasonable compensation for their time and certainly any expenses out of the estate, and I think this is paid before any heirs get theirs.
posted by randomkeystrike at 5:54 AM on April 17, 2011

Response by poster: I'd like to be equipped with a clear understanding of the process before I talk to the solicitor.

I don't want to make the same kind of errors that I made when dealing with the funeral director, who compassionately, kindly and professionally sold me $1700 worth of firewood.
posted by flabdablet at 5:58 AM on April 17, 2011

Response by poster: Oh, and I don't expect that my brother and sister will cause any unnecessary stress. Mum raised us better than that :-)
posted by flabdablet at 6:00 AM on April 17, 2011 [1 favorite]

What am I missing that's worth a hundred bucks to find out about?

Probate, like conveyancing, is an area of law that is in most cases pretty straightforward, but because of the dollar values involved, most people feel that throwing a few grand at somebody who does it day in, day out is worth it, just to ensure that things don't fuck up.

Like conveyancing, you can do it yourself, and there are DIY kits available (like the $99 ones you mentioned - probably similar to this one) which can simplify the process for the lay person.

For $99, what you are paying for is the intellectual property involved in translating "these rules" into plain English & into a clear action plan & checklist of what to do.

IANYL but while on one hand any reasonably intelligent person could make sense of them, on the other hand do they cover every single thing you need to do? (rhetorical question). If you need to file Form 144B at the Widget Registry for some reason, is this covered in the rules? You may not be able to know this just by reading the rules. Or you might; who knows? At this point, not you.

Short version: $99 is peanuts, compared with the presumed value of the will. Like, not even a percentage point. In a project management / risk mitigation sense, the cost easily justifies the potential harm that you're mitigating.

Also, .

(and $1700 worth of firewood?!?? tell him he's joking! A cubic metre of hardwood should set you back only about $200, and 2m3 is enough to keep a house warmed all winter)
posted by UbuRoivas at 7:47 AM on April 17, 2011

Lawyers are bound to tighter ethical constraints than funeral directors and so I'd ask hers, though I'd verify what he said before signing large checks.
posted by Obscure Reference at 7:55 AM on April 17, 2011

So, by firewood, I think you mean an unnecessarily grand coffin? I'm sorry for your loss. Don't feel guilty because you got sucked into spending too much by someone who took advantage of you when you were vulnerable.

You can start by making your own lists of assets and liabilities and bills to be paid. Go to a good bookstore and see if they can recommend a book on being an executor. Then go meet with the solicitor. That's really the professional advice you need. The best way to save money on lawyers is to be prepared with the information you need.
posted by theora55 at 9:33 AM on April 17, 2011

I'm sorry for your loss. I lost my mother last year (unexpectedly) and was in a similar situation. I'm in Canada and obviously rules regarding probates and wills are different but I have a couple of general suggestions:

-Don't be afraid to talk to your mother's solicitor before you know everything. Part of their job is to be a resource for you in this time. If you are indeed the executor, you can decide to have the solicitor help you as much or as little as you would prefer/can afford.
-If you're not sure about how to proceed using the services being offered to you, take some time to consider your options. You're in charge.
-It sounds like the funeral expenses have left a sour taste, and rightly so. I think the entire funeral business is an absolute racquet/scam. BUT, having said that, I'd discourage you from doing the legal stuff on the cheap. To get the will probated and have you appointed executor will probably cost in the neighbourhood of $2000-$2500 but its money well spent. And remember it's your mother's estate's money, not yours (not knowing anything about your mother's worth when she passed away). You'll have to supply the lawyer/solicitor with information about yourself and your mother, sign some forms, but beyond that they will do the rest, and take some of the bureaucratic drudgery off your hands at a time, I'm guessing, when you don't really want to deal with it. They will also get it done more quickly than you will do yourself (likely 1-2 months).
-Speaking of bureaucracy, once you're appointed, you will be dealing with a lot of it. No one will deal with you until you have a probated will to show them. They'll also want copies of the death certificate (not sure if in Australia if this is a government document or issued by the funeral home), so get a lot of those. People on the phone will tell you they need Form A, B, and C, then when you deliver them, they will say 'oh, you also need Form D.' Don't get discouraged, it's just the way it is. Again, a solicitor can deal with as much or as little of this as you're willing to tolerate/pay for.
-If Australia has a state pension program, and your mother contributed to it (through payroll deductions most likely), she may be entitled to pay out from her contributions, which probably will be modest but will help defray some expenses. Investigate this and apply as soon as you can.

Good luck with it all, and I'm sorry for your loss again.
posted by dry white toast at 6:00 PM on April 17, 2011

-If Australia has a state pension program, and your mother contributed to it (through payroll deductions most likely), she may be entitled to pay out from her contributions

Or superannuation - I know that my Super fund gives a tidy payout when I's six figures at least, something like $300K...?

death certificate (not sure if in Australia if this is a government document or issued by the funeral home)

State government - VIC registry of births, deaths & marriages. Not sure about VIC but in NSW funeral directors are eligible to apply for the certificates on behalf of the next-of-kin, but only within (from memory) 60 days. Just depends on whether it's part of the service or not. Otherwise, you can apply directly yourself - note that you'd need to prove your identity, and also that you're next-of-kin (eg with a Birth Certificate) to get the Death Certificate. Your jurisdiction may vary, but probably not much.
posted by UbuRoivas at 6:21 PM on April 17, 2011

Response by poster: I've got the death certificate.

I've been reading the rules, and I think I've now got enough of a handle on things to know if I'm being railroaded. I think I'll call the solicitor, arrange to collect the will, and just start plugging through the process.
posted by flabdablet at 7:52 PM on April 17, 2011

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