EVERYDAY LAW FOR EVERYDAY PEOPLE
Estate Administration & Probate
Our professional and compassionate estate services can assist you during this difficult time with the administration and distribution of a deceased estate.
Estate administration involves the collection of the deceased’s assets, the payment of any debts or taxes and the distribution of the remaining assets to the intended beneficiaries. It is important to understand the legal framework and the rules that apply to the administration of a deceased person’s estate.
The personal representative is responsible for administration of the estate in accordance with the terms of the Will or at Law. This is usually the Executor who has been appointed in the Will, or if there is no Will, the Administrator appointed by the Court.
The personal representative has a duty to act in the best interests of the estate and must also ensure that the estate is administered in a timely and efficient manner.
As Estate Solicitors, we are familiar with the legal requirements for administering an estate and can provide you with valuable advice and assistance to ensure the smooth and timely finalisation of the estate.
Key Executor Considerations When Administering an Estate
- Locate the Will: The original Will of the deceased should be located as soon as possible as it may contain wishes relating to funeral arrangements.
The Executor must be satisfied that this is the last Will made by the deceased.
- Make Funeral Arrangements: Family members normally arrange the funeral, however, if this is not possible then it is up to the Executor to make these arrangements. If suitable funds are held in the deceased’s bank account, the bank will usually release monies for these expenses.
- Determine and Protect the Assets: It is of paramount importance that the Executor protects the assets of the estate. This may require the Executor to store valuable items or to ensure that any Real Estate is adequately insured.
- Ascertain whether a Grant of Probate is required: Probate is the formal proving of the Will by the Supreme Court. Depending on the size of the estate and the nature of the assets, not all estates will require a Grant of Probate in order to release and/or distribute the assets.
- Apply to the Supreme Court for a Grant of Probate: If you have determined that the estate requires a Grant of Probate, the Executor must file certain legal documents with the Supreme Court such as the original Will and Death Certificate and a statement of all assets and liabilities of the estate.
- Collect/Sell the Assets: After the Grant of Probate has been made, the Executor needs to sell or call in the assets of the estate so that liabilities can be paid and ultimately distribution to the beneficiaries.
- Pay the Liabilities: Before distributing the assets of the estate, all debts must be paid. This may include finalising any tax matters.
- Finalise Taxation Matters: The Executor must ascertain whether there are any tax liabilities of the deceased or the estate. If the Executor distributes the estate to the beneficiaries and there are outstanding tax liabilities, the Executor will be personally liable for payment to the ATO.
- Distribute the Estate to the Beneficiaries: Distribution of the Estate should not occur until at least six months after the date of death. The Executor must ensure that distribution of the estate to the beneficiaries is in accordance with the terms of the Will.
Estate administration & Probate
Frequently Asked Questions
Probate is an Order of the Supreme Court which confirms or proves that a Will is valid and that the Executor has permission to distribute the estate.
Letters of Administration is an Order of the Supreme Court which allows for the administration of an estate where, either, there is no Will, or where the Executors appointed in the Will are unable or unwilling to act in this role.
Where a person dies without a Will, this is referred to as an ‘intestacy’ or dying ‘intestate’. In NSW the Succession Act 2006 sets out the rules of intestacy which is a hierarchy of categories of family who can inherit the estate. The Government will only receive the estate where the deceased has no surviving eligible family members (spouse, children, parents, siblings, grandparents, aunts/uncles, cousins).
The Executor must collect all of the deceased’s assets, pay any debts and taxes that are due, and distribute the remaining assets to the intended beneficiaries in accordance with the Will or the laws of intestacy. The executor may also be required to prepare a final tax return for the deceased and/or the Estate and file it with the Australian Taxation Office.
We are based in the NSW’s Southern Highlands area and can assist as Probate lawyers throughout the state. We can meet with clients in Mittagong, Moss Vale, Bowral, Cambden, Campbelltown and also discuss virtually your estate administration requirements over the phone.