The passing of a loved one is a difficult time for your family. Here is everything you need to know from death to execution of a Will.
When someone passes away, their Will comes into effect to appoint someone as the Executor (also known as Legal Personal Representative) of their estate to finalise their personal affairs and distribute their assets in accordance with their Will.
We will obtain details of the assets of the estate and discuss whether a Grant of Probate needs to be obtained from the Supreme Court. Some asset holders may also require a grant to be obtained before funds will be released (for example, banks have a threshold amount where they will require probate, generally around $50,000).
What is a Grant of Probate?
A Grant of Probate is the Supreme Court’s recognition that a Will is legally valid and provides the Executor with authority to distribute the assets of the estate following the Will. This formal process involves advertising, then making an application with supporting documents and explaining any issues regarding the Will (for example, if the Will was not correctly executed, any discrepancies such as incorrect spelling of names or issues regarding the capacity of the deceased).
Where there is no valid Will, or the Will does not appoint an Executor, an application may need to be made to the Supreme Court for a grant of Letters of Administration to appoint someone as the personal representative of the estate. The Rules of Intestacy will apply as to how their estate will be divided between family members.
The process of administering an estate
Once a Grant has been obtained, if required, the various asset holders can be contacted in relation to collecting funds and property can be sold or transferred as required. The personal representative must also ensure that any funeral accounts, legal fees and debts of the estate are paid and any arrangements made for any required tax returns to be lodged.
The relevant legislation provides that anyone who wishes to make a claim against an estate should do so within 6 months of the date of death. Family provision claims may arise where someone who was not sufficiently provided for under the Will can make a claim. Legal advice should be sought in relation to any notice received of an intention to make a claim.
Once 6 months have passed and if no notice of an intention to claim is received, the estate can then be finalised and distributed to the beneficiaries. In the case of simple estates, assets may be distributed earlier at the discretion of the personal representative depending on the circumstances of the estate.
Should any disputes between beneficiaries or claims against the estate arise, this will complicate and delay the administration of the estate. We recommend making an appointment to discuss any matters regarding the administration of an estate with one of our solicitors to ensure you are aware of your rights and obligations and that the wishes of your loved one are carried out.
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