When a loved one dies, there are many practical and legal considerations for the family or friends of the deceased.
Below is a brief guide to the some of the important considerations in the administration of the deceased estate.
The first step is to determine whether the deceased left a will. The will sets out who is the executor and how the estate is to be distributed. An executor is the person or institution appointed by the deceased, to carry out the terms of the will. Once the will is located, the executors of the Will can be easily identified, (if not already known) and they can then execute their duties.
If the deceased failed to nominate an executor in their Will, the Court will appoint an administrator. Generally, the administrator will be the main beneficiary of the deceased’s estate.
The Executor is responsible for the following:
- Arranging for disposal of the deceased’s body;
- Acquiring the death certificate of the deceased;
- Ascertaining deceased’s assets and liabilities;
- Assessing the value of the deceased’s assets and liabilities;
- Obtaining Probate if required;
- Paying the deceased’s debts, income tax, duties and funeral expenses; and
- Distributing the assets according to the terms of the will.
If the Deceased left a will, the executor(s) will typically need to apply for Probate. Probate is a legal Order from the Supreme Court certifying that the will has been proved to be the last valid will of the deceased and allows the executors(s) named in the will the authority to administers and finalise the deceased’s estate.
A grant of probate can only be made if the deceased left a will. If a will for the deceased cannot be located, then it is presumed that the deceased died interstate and, in that case, letters of administration will need to be applied for.
Letters of Administration is an Order made by the Supreme Court which allows an administrator to distribute the assets of the deceased who died without a valid will. The Administrator is the person(s) who make the application for the letters of Administration and needs to be a person eligible to receive a share in the deceased’s estate. The Administrator will be responsible for identifying the relatives that are entitled to a share of the deceased’s estate in accordance with the relevant intestacy laws.
In certain circumstances, probate or letters of administration will not be required, typically when property is owned as joint tenants or when the value of the estate is minimal and or the estate is uncomplicated. It is important to check with the asset holder as to whether they require a grant of probate or letter of administration to release the funds they hold for the deceased.
If you or someone you know requires assistance in applying for probate or letters of administration, you can contact us on 02 4322 0251 or send an email to [email protected] and we will be able to assist you.