Deceased estates: knowing where to start needn’t be stressful
Managing the estate of a deceased friend or loved one can be an overwhelming task. Aside from processing the sadness of loss, you have the added pressure of honouring someone’s wishes while trying to understand jargon in a complicated legal process.
The first question you need to ask when managing a deceased person’s estate is simple: Do they have a Will?
There is no Will
If your loved one has passed away without a Will, there will be no executor appointed to start work on the estate and there won't be any formal instructions to help you determine what happens with their estate. Things can get very complicated, very quickly.
We understand that losing someone close to you is very distressing. In addition to the emotional strain of dealing with the loss, you may need to quickly take care of practical matters such as organising their funeral, contacting different organisations (such as utility providers and superannuation funds), and working out the assets and debts of the estate.
Having expert help and advice can make all the difference.
How is an intestate estate dealt with?
Dying without a Will is known as “dying intestate”. This is not an ideal situation, but it’s far more common than you think. So, where do you start?
If your loved one has passed without a Will, an application needs to be made to the Court to appoint a person to act as the Administrator of the estate. This is because there is no executor appointed. This application is referred to as an application for a Grant of Letters of Administration on intestacy and it’s the first thing you need to do. The process can be complex and you may need to have a lawyer assist you in making the application.
In all cases where it is necessary to apply for a Grant of Letters of Administration, it is usually the person with the greatest entitlement to the estate, as determined by applying the intestacy formula, that applies for the Grant. For example, if a spouse or partner survives the deceased, they would usually bring the application. If the deceased is survived by children (and no spouse/partner), then one or more of them could apply.
There is a Will
When someone names you as the executor of a Will, you become responsible for their estate and their final wishes upon their death. Being an executor of a Will can feel overwhelming for some people, but it doesn’t need to be.
Your main role as executor is to represent the person who has passed away and wrap up all of their personal, financial and legal affairs. Ideally, the Will-maker will have explained how they’d like you to carry out your duties in their Will.
Here is a list of the main responsibilities you now have as an executor of a Will:
1. Identify the assets and liabilities of the estate;
2. protect these assets (ie; store them safely where necessary and make sure they’re insured);
3. apply to the Court for a Grant of Probate where necessary;
4. collect the assets of the estate and hold them on behalf of the estate prior to them being distributed;
5. make sure all estate liabilities, including tax, have been paid;
6. defend the estate from any challenges;
7. distribute the estate to the beneficiaries in accordance with the Will.
If you need advice on administering a Will, our expert Wills & Estates lawyers can guide you through the process and ensure you make informed decisions.
Do I have to accept the responsibility of being the executor?
A lot of people ask me this question, and I refer to it in detail in my book The Australian Guide to Wills & Estate Planning. You are not legally obliged to take up the appointment of executor, even if you agreed to accept the role while the Will-maker was alive. A lot can happen in the time between the writing of a Will and the time when the administration of an estate is required. We can help if you decide that you don’t want to act as executor.
What is the difference between a Grant of Probate and a Grant of Letters of Administration?
An application for a Grant of Probate is made to the Court by an executor appointed by a Will. The Grant of Probate confirms that the Will is valid and that the executor has the authority to deal with the assets of the estate.
An application for a Grant of Letters of Administration is usually made to the Court where there is no Will and, therefore, no appointed executor. In this case, a beneficiary of the intestate estate will apply to be granted the formal right to administer the estate as Administrator. An application for a Grant of Letters of Administration may also need to be made where there is a Will but the nominated executor refuses or is unable to take up the role.
Assistance with administering an estate
We can help take the pressure off you during this difficult time. Our expert lawyers can manage everything and you can be sure that the estate will be handled professionally and impartially. We can handle the entire administration process, or assist in applying for a Grant of Probate or a Grant of Letters of Administration.
We’re here to help.
If you would like us to administer the estate of your loved one, or you would like to discuss the options available to you, please feel free to contact us and speak to our expert lawyers today.
How do I make a Will?
Our online Wills service, MyLife Wills™ is a great place to start. You can provide the information for your Will online in the comfort of your own home or on your lunch break. It only takes about 30 minutes, reducing face-to-face time with a lawyer, therefore reducing the cost. The main difference with our online service is that an expert Wills and Estates lawyer will draft your Will so you can be confident that it is not only thorough, but also legally valid.
To protect yourself, your assets and your loved ones when you eventually do kick the bucket, it’s time to take your Will out of the too-hard pile and put it in the must-do pile. Maurice Blackburn has made it easy for you to start online today.
Need more information?
Andrew Simpson is the National Head of Wills & Estate Planning at Maurice Blackburn Lawyers.
Andrew has 20 years’ experience as a lawyer and for the past 18 of these years he has practiced in Wills disputes and Estate planning, so he understands the many facets of Estate law.
He is so passionate about this area of law that he wrote a plain English book about it to help people understand the importance of Estate planning.
A best-seller, The Australian Guide to Wills & Estate Planning, has just been republished and is available in all good bookstores.
For all oversixty.com.au readers, we are pleased to offer a FREE download of Andrew’s book, valued at $29.95.
This is a sponsored post written in partnership with Maurice Blackburn Lawyers.