Probate & Intestacy
Probate
Have you been appointed as an Executor in a Will? It can be a daunting task but it is certainly an honourable one. There is usually a good reason why you have been selected by the deceased to manage their affairs on their passing. We can help guide you through the process of administering an estate.
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We can also assist with applications involving unusual circumstances such as lost wills, validity of wills or electronic wills.
We often give advice to people administering estates. It can be a difficult job for anyone! Being an executor can include having documents such as an affidavit prepared for applying for a grant of probate to the Supreme Court. This will also include documents for legal orders and schedule of the assets and debts of the deceased.
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It may include organising the personal effects of those who have passed away and compiling and reviewing paperwork. This might include trying to find the Will itself and getting advice on what it means.
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Once a grant of probate is made you (or your lawyer) will need to liaise with banks, Landgate, government departments, nursing homes, superannuation funds and various other interested parties. This can include gathering information on the deceased assets and even identifying what they are in the first place. Once they have been identified they are usually placed in an estate specific bank account. It is important to keep records and accounts as an executor. We have many examples to be able to help you set this up.
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One of the roles of the executor is to arrange payments for any debts owed by the estate. It is important to check with your lawyer whether there is any chance to have this waived and to check the validity of any debts.Again, the executor or their lawyer will usually confer with the creditors to the estate.Another similar role is advising places like centrelink and the ATO and organising an estate final tax return.
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One role that many executors find particularly difficult is communication with beneficiaries. They might be overseas or otherwise difficult to contact. In other cases they may be upset and difficult to deal with. Having a level headed lawyer to communicate clearly with other parties is important and helps ease some of the workload.
The final role for the executor is actually distributing the estate funds to beneficiaries. This can include preparing deeds beforehand and making the actual transfers. A calculation of peoples' entitlements might be required and we have spreadsheets we have developed to work this out and record what happens.
Some wills are more complex and may involve children under 18 or people with disabilities, amongst other examples. In these cases the will may direct you to organise a trust fund. Did you know an executor is also technically a Trustee? We can assist you to prepare the necessary documents and give advice on how to set it up and how to operate it all.
There are many more tasks that an executor or administrator may be required to do and we are experienced in assisting people to do this, whether that’s giving some one-off advice or being more involved and assisting to perform tasks on their behalf.
Administration
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An application for administration is required in cases where the deceased has passed away without having prepared a valid will. The legal term for this is someone having died “intestate”. Intestacy can apply also to a portion of someone's assets that have not expressly been dealt with in the Will or the will did not make correct reference to how to deal with the “residue” i.e. the leftover assets of the will. This is one good reason to have a valid will prepared by a qualified lawyer. That said, some people tragically pass before they have had an opportunity to prepare a will and in these cases an application for administration will be required.
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In circumstances where there is not a will it often becomes a practical necessity to have a grant of administration prepared. For example, a bank may accept a copy of a death certificate and a certified copy of the will, to release funds. However without a will banks and similar organisations may be reluctant to release funds or do anything without a court ordered Grant. This can include more mundane matters such as having utilities changed or direct debits ceased.
In those instances where someone has died without a will it may be wise to apply for letters of administration to be allowed to administer the estate. The role of an administrator is similar to an executor but some of the rules around distribution to beneficiaries are set by the applicable legislation. For example, if someone dies without a will the government has made rules about what shares go to the spouse and children of the deceased. We are able to advise you exactly who is entitled to what under the Administration Act and how to go about the administration process. We note an executor or administrator is normally entitled to have any legal fees paid from the estate and other reasonable expenses incurred in handling the matter.
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Contact Carter Dickens Lawyers in Joondalup for all manner of assistance for probate or administration matters on (08) 9408 5212 or info@cdlawyers.com.au