If you have recently lost a family member or friend, we understand that this can be a difficult and emotional time. We want to make it as easy as possible for you go through the process of finalising their estate.
When a person dies, their executor has the responsibility to call in assets, pay any liabilities and distribute the estate to the beneficiaries named in their Will.
Who is an executor?
An executor is chosen by the person making the Will to carry out their wishes in managing their estate and carrying out the deceased’s wishes. An executor may be a trusted friend, a relative, or a professional. Most people are unaware of the complexities and time involved in administering an estate.
What are the legal steps that are taken after someone dies?
The executor of a Will may need to make an application to the Supreme Court for Probate. This is usually done with the help of a lawyer. Probate is a Court Order declaring a deceased’s Will valid and authorising the person named in the Will as the executor to administer the deceased’s estate.
Once Probate has been granted, asset holders including banks, the department of lands, share registries and aged care facilities will release or transfer the deceased’s assets into the executor’s name so that the executor can deal with the estate.
It is not always necessary to get a Grant of Probate and this will depend upon the nature of the assets of the estate. To determine whether a Grant is required, the executor or lawyer acting on behalf of the executor will contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries.
Where a dispute has, or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. If an executor proceeds to administer a deceased estate without the authority to do so, they can become personally liable to the beneficiaries of the estate.
How to apply for Probate
Anyone appointed as an executor under a Will must firstly determine the deceased’s assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.
In making an application to the Supreme Court, the executor must:
- advertise their intention to make an application for probate
- lodge a formal application with the Court with an affidavit of the executor containing:
- proof of the advertisement
- details about the Will
- certain details about the deceased person;
- a schedule of assets and liabilities of the deceased person; and
- the original Will
- do a search of the Registry records to indicate a previous Grant has not been made; and
- provide a certified copy of the Death Certificate.
Paying any debts and distributing the assets
Any debts of the estate must be paid before the estate is distributed. The executor then distributes the estate in accordance with the deceased’s Will.
After a Grant of Probate has been made, evidence of the Grant must be sent to the various organisations where the deceased’s assets were held (i.e. the deceased’s banks or share registries). Those institutions will then transfer the assets as directed by the executor or the executor’s lawyer.
If a deceased owns property in more than one jurisdiction, it may be necessary to apply to the Supreme Court of that jurisdiction for a reseal of the Grant of Probate, before assets in that jurisdiction can be administered.
If you need to know any more about administering a deceased estate please contact us on (02) 8014 5885 or email email@example.com.