Administering a Deceased Estate: Where do you start?
Losing a loved one is difficult and can be made all the more challenging if you find yourself having to administer the Estate of the deceased.
One of the first tasks you will need to do after losing a family member or loved one is to determine whether they had made a valid Will. If someone has made a Will it is usually stored amongst their personal papers at home, at their solicitor’s office, or in a safety deposit box at their bank or financial institution.
If a Will is located, it generally names someone (or multiple people) as the Executor of the deceased’s Estate. The Executor is the person that the deceased wanted to look after their Estate upon their passing and ensure that their wishes are fulfilled.
Once the Will has been found, the process of administering the Estate can be lengthy and generally comprises the following stages:
Stage 1: Arrange the funeral and obtain a Death Certificate.
Some people plan in advance for their own funeral, or they leave specific instructions in their Will about how they would like to be farewelled.
If there is no pre-paid funeral arrangement in place, you can take the invoice from the funeral home to the deceased’s bank and request that they arrange payment from the deceased’s bank account.
The Funeral Director can also assist with submitting the correct information to obtain a Death Certificate from the State-based Registry of Births, Deaths and Marriages. This is not the “Cause of Death Certificate” provided by a doctor – it is the official record of a person’s death and is often needed for legal and financial reasons (like a Birth Certificate or Marriage Certificate) when dealing with the deceased’s Estate.
The process of obtaining a Death Certificate can take anywhere from 2-6 weeks
Stage 2: Identify the deceased’s assets and liabilities.
Though difficult, especially when grieving, you will need to go through the deceased’s personal papers carefully to obtain details of their assets and liabilities, including bank accounts, shares, property, superannuation, and life insurance policies. While property and bank accounts might be held in joint names, anything that is owned in the sole name of the deceased will need to be identified and included as part of the Estate.
If the deceased owned assets in their sole name over a certain value, you may also need to apply for a Grant of Probate which is a document issued by the Supreme Court that confirms both the Executor’s appointment and that the Will being used is the most recent one. If the deceased died without a Will and owns assets, you may need to apply for Letters of Administration rather than a Grant of Probate.
There are set timeframes to apply for a Grant of Probate or Letters of Administration and it is recommended that you seek the advice and assistance of an experienced Wills and Estate lawyer to ensure you meet all the deadlines and understand any legal requirements.
Stage 3: Gather, distribute, and settle the Estate.
The next step in administering an Estate is to gather all the assets and pay off any liabilities including outstanding income tax and lodging a final tax return on behalf of the deceased. Depending on the assets of the Estate, the Estate itself may also need to lodge a tax return and pay any tax owing.
Assets owned in joint names, such as property or cash held in bank accounts, will usually transfer automatically to the remaining co-owner.
Once you are sure that all outstanding debts and taxes have been paid, you can distribute the remainder of the deceased’s assets according to their wishes, as set out in the Will.
What if there is no Will?
When someone passes away without a Will, it is called dying “intestate” and there are strict rules regarding who can administer the Estate, and who is entitled to receive benefits from the Estate.
In these situations, it is very important for the remaining family members (or those closest to the deceased) to seek legal advice from an experienced Wills and Estates lawyer. By speaking to an experienced lawyer from the outset, you can minimise any potential conflict in the future and ensure that all beneficiaries are taken care of.
For more information on administering a deceased estate, contact Nicolas Moore, Accredited Specialist and head of the Wills and Estates team here at CDQ.
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