A guide to deceased estates
Understanding the processes involved with deceased estates is important in helping us make good decisions and reduce stress in what can be an emotional and difficult time.
There are a number of steps to go through to ensure a deceased person’s estate is settled appropriately. While the law that applies depends on which state or territory of Australia you lived in, the following are some general points to be aware of.
1. The will
Firstly, locate the will – there will usually be an executor appointed. If the will does not name an executor, any of the beneficiaries can apply to the Court to be the administrator of the will. If there is no will (“dying intestate”), the court appoints an administrator to carry out distribution in accordance with government guidelines.
The persons who can act as administrator where a person dies intestate are governed by state/territory law but usually include the spouse or partner of the intestate, one or more of the next of kin of the intestate, or another person the Court considers appropriate. Children under 18 are not eligible to act as an administrator.
2. The role of the executor
An executor is the person who carries out the instructions in your will and manages the allocation of the property in the estate. Specific responsibilities include:
- Compiling an inventory of assets and obtaining any valuations
- Filing the necessary paperwork
- Collecting money due, paying bills, finalising tax returns and other costs
- Managing the closure of bank accounts, utilities etc.
- Closing the estate and distributing assets to the beneficiaries
3. Probate
An executor can apply to the Supreme Court for a grant of probate, which authorises the executor to distribute the property according to the will. This may not always be necessary – for example where all assets are jointly owned.
4. Contesting a will
There are strict conditions concerning who can make a claim against a will. If you think you are eligible to make a claim, or if you are an executor defending a claim against the estate by another person, it is recommended you seek legal advice.
5. Estate settlement timeframes
While it’s hard to generalise, it usually takes between six months and a year from the date of death until assets are distributed in accordance with a will. Wills may also have provisions for funds or assets to be held for extended periods, such as in trusts for certain beneficiaries such as children until they reach a certain age or to provide ongoing income.
6. Organising the funeral
The executor is responsible for organising the funeral, usually funded from the estate. Together with family and friends, decisions can be made to honour the life of the loved one in accordance with any expressed wishes.
Summary
The death of someone close to us places significant strain on those left behind. In the emotion and stress that follows, knowing what’s involved in the estate settlement process can be a big help.
This article is for general information only and cannot be relied on as legal advice. You should seek formal legal advice on your specific circumstances.