After a person dies, someone needs to look after their assets and finalise their affairs. This is referred to as estate administration. An executor appointed in a will has this role or, if a person dies intestate (without a will), an administrator will need to be appointed and authorised by the court to deal with the estate.
Executors and administrators have significant legal and practical duties, and the role can become overwhelming, particularly while grieving the loss of a loved one, or if the estate is complex or a dispute arises.
If you are dealing with a deceased estate, we can help you navigate the legal process, providing advice and guidance to help you carry out your duties, and to ensure the estate is administered as smoothly and efficiently as possible.
What are my duties as an executor?
If you have been chosen by a family member or friend to be their executor, you will be responsible for managing and distributing their estate according to the terms of their will and protecting their assets under the various laws that govern estate administration in Australia.
An executor’s duties may include:
- Organising the funeral and notices
- Locating the will and obtaining a copy of the death certificate
- Making sure property and assets are safe and secure
- Applying for probate
- Paying insurance policies, debts and taxes
- Collecting monies from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling or transferring properties and assets
- Distributing the proceeds of the estate to beneficiaries and reporting
- Setting up trusts
What is Probate?
Probate is recognition of a will’s validity and permission from a court for the executors named in the will to carry out their duties in relation to the estate. You will likely need a grant of probate to deal with the assets of an estate such as selling property and obtaining bank funds.
To apply for probate, you will need to complete an application with a number of supporting documents and file these with the Supreme Court. A notice must be given before the application is made and the Court may, in some cases, raise requisitions regarding the application which will need to be answered before the grant is made.
When probate is granted, the Court deems the deceased’s will to be their last will and to be valid, which then authorises the executor to distribute the estate.
What happens if there is no Will?
Dying without a will is referred to as dying intestate. If you are the next of kin you can apply for letters of administration, which will give you authority to deal with the deceased’s assets and finalise the estate. An intestate estate is distributed in accordance with a statutory formula which provides for a specific order of distribution to the deceased person’s next of kin.
Administering the Estate
Once a person has been granted probate or letters of administration, they can gather the deceased’s assets and administer the estate according to the will or the laws of intestacy. Before distributing property to beneficiaries, an executor or administrator must pay the debts of the estate, including funeral and administrative expenses.
Administering a deceased estate including any trusts that form part of it can be complex. Depending on the type of assets in the estate, an executor may also need to safeguard any income, invest money not currently required, and insure property. If you are an executor, it is a good idea to get some legal advice on what you need to do and any steps you should take to maximise the value of assets. This can be even more relevant if there is an estate dispute requiring a delay before the distribution of the balance of any property to beneficiaries.
To find out more, or to arrange an appointment with an experienced estate and probate lawyer, contact [email protected] or call 02 7256 7050.