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deceased estates

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When an individual dies the person nominated as their  Executor is obliged to look after the assets of the deceased  person and pay the person's debs and generally wind up their affairs.

The burial of a person is not the final "good bye".

The winding up of the deceased's estate and the distribution of their assets is the final act of the deceased's existence.

The person to finalise the affairs is either appointed as the individuals Executor by the Will or if there is not a Will an application may be made to the Supreme Court for appointment as the administrator of the estate.

In this material we will refer to the Executor or the Administrator  collectively as 'executor'.

Other important terms you should be familiar with are are -

"Probate" a Court order declaring a deceased's Will valid and that the person named in the will as the executor can finalise the deceased's affairs.

 "Letters of Administration" a Court order made where there is not a will,  where a will does not appoint an Executor or where an Executor may be unwilling or unable to

"Grant". Is the term used for the Order of the Court for both "Probate" and "Letters of Administration"

Most executors regard their appointment an honour. It is a sign of the deceased's faith and trust in the executor's integrity to carry out the deceased's wishes.

Administration of a simple estate
When a person is appointed an executor in a will, the appointment only takes effect after death. A Court Grant is a formal recognition of a persons right to administer the estate and gives  that person the authority to deal with the world at large in relation to the distribution of the deceased's property.

In recent years the need for a Grant by the Courts has been relaxed although need for Probate in any Estate is largely governed by the attitude of  financial Institutions, Insurance companies and the like.

An application for a Court Grant is still however necessary in a large number of cases.  Large estates may handled without obtaining a Grant from the Court. In certain circumstances there may be risks attached to the distribution of the Estate assets without obtaining a Grant of Probate

An application to the Court incurs considerable costs in advertising of the application in a newspaper, Court lodgment fees and legal costs.

After obtaining the Grant of Probate by the Court the terms of the deceased ‘s will can by applied and the distribution of the assets attended to. The closing of banks accounts, transferring shares and real estate, motor vehicle ownership, lodging tax returns etc can then be effected.

Although many persons find the administration of a deceased estate distressing, the process is not very difficult and need not be expensive

What is 'Probate' about?
Take an example. A bank account in the name of the deceased, as far as the bank is concerned, belongs to the deceased. If the bank is satisfied that another person has lawful authority over the account then it will release the funds to that person.

Normally a Grant of Probate is that authority.

The same applies to land. The Registrar of Titles will not transfer land to another person without a Grant of Probate. The Grant is an authority recognised by the Titles Office to deal with land.

A Grant of Probate requires an application to the Supreme Court. To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the organisations requirements for transfer of those assets to the executor or the beneficiaries.

Where a dispute may arise over the estate a person appointed as executor would be wise to apply for probate. Where a person does not have the right to deal with an estate, the person can be liable to beneficiaries.

Anyone appointed an executor must in the first place determine the deceased's assets and debts. Once that is known you can then determine how the assets can be transferred to the beneficiaries.

If an application must be made to the Supreme Court -

• you must advertise the application in a prescribed form in a newspaper circulated in the area where the Deceased lived at the time of his death

• you must lodge a formal application with the Court with an affidavit containing

  • proof that you have advertised the application

  • some details about the deceased

  • a death certificate

  • the original will

  • statement that you have searched the Registry records to indicate a previous Grant has not been made and you must also pay a fee of about $A000.00 to the Supreme Court

The application is generally through within a matter of days unless the Registrar of the Court has questions about the documents.

What happens after the Grant (of Probate) has been made?
After you have collected the Grant from the Supreme Court Registry, you physically take it or send it to the various places where the deceased's assets are held. For instance, if the deceased had a bank account and bank requires the Grant, you take it across to the bank and they will place a copy of the document with their records. Any money in the accounts will then be paid to you to distribute in accordance with the will.

Likewise, any land in the sole name of the deceased can be transferred to the beneficiary by taking the Grant to the Land Titles Office and making an application for that transfer.

Any debts of the estate must of course be paid before the estate is distributed. The executor has a legal obligation to make those payments.

In many ways the process is simply a lot of 'leg work' rather than being a difficult process.

The same process applies where the deceased did not leave a will. Any close relative or a creditor of an estate can apply for a Grant. The only difference is that the law determines who is to inherit the estate.

This is all there is to the administration of at least 75% of estates. Obviously peoples' affairs vary and they can become terribly complex, but it is not anything to fear and you can save costs by looking into doing the work yourself or perhaps by having a Solicitor to guide you.

There are however many questions which may arise after the death. You often hear of small items of property (jewellery, money, family heirlooms etc) going missing after a family member has 'raided' a deceased's home before other relatives have access. Likewise there are occasional disputes over a deceased's body.

An executor must always keep his / her own money and affairs separate from those of the deceased estate. This is absolutely essential where the executor is not the sole beneficiary. If you do not, you will surely regret the day you decided to administer a deceased estate.

And do not forget to put in that final tax return!

A warning! Estates are the cause of some very bitter disputes in families and with de facto spouses. Everyone has heard a similar story. You will need to act in accordance with the will and in an open manner whereby all concerned can see that you are carrying out the deceased's wishes