A death in the family can be devastating for all involved. Whilst dealing with the grief of the loss of this person, you may also be tasked with finalising their affairs. This is often the last thing you want to consider and knowing how to begin the process can be quite daunting.
Establish if the deceased has left a valid Will
First and foremost, it is important to establish if the deceased has left valid testamentary wishes. For some this may be a simple task, as the deceased may have already made a Will and told their executor where it is stored. However, if you are unsure whether the deceased left testamentary wishes, you will need to conduct reasonable searches for any valid or informal Wills. This can include sorting through the deceased’s paperwork (including electronic files), contacting other family members, banks and the deceased’s solicitor.
If the deceased has left a valid Will, a Grant of Probate may be required. Alternatively, if the deceased has died intestate, ie without a Will or without a valid Will, a Grant of Letters of Administration may need to be obtained. Letters of Administration can be a complex application. A person’s eligibility to apply to be an administrator is determined by the rules of intestacy.
Whether Probate or Letters of Administration are required will depend on the nature of the assets and liabilities held by the deceased at the time of their death. Therefore, the next step will be to compile a list of assets held solely and jointly by the deceased.
Investigate the assets held by the deceased
You will need to ascertain the assets and liabilities held by the deceased upon their death. Different types of assets could be held, and you may need to sort through the deceased’s private papers to obtain the necessary information. Whilst jointly held assets may not form part of the estate, you may still be required to disclose them to the Court.
Some assets and liabilities to be aware of are:
- Real Property held solely or as Joint Tenants or Tenants in Common with another person;
- Bank Accounts/Bank loans held either solely or jointly;
- Household furniture and personal belongings (it is important to locate and keep in safe custody any specific gifts bequeathed in the deceased’s Will. For instance, military medals gifted to a child or grandchild);
- Shares, investments and trusts;
- Tax liabilities;
- Unpaid employee entitlements;
- Life insurance;
- Superannuation; and
- Motor vehicles, boats etc.
An inventory of property will help your solicitor determine whether a Grant of Probate or Letters of Administration is required. A form of inventory of property will also be supplied to the Supreme Court in any application to show the Court what assets may need to be administered.
Seek legal advice
Accepting the role of an executor or taking on the administration of a deceased estate is not without personal risk. Mismanagement of estate funds or distributing an estate too early are common mistakes made by executors when carrying out their responsibilities. This may expose the estate to litigation, in some instances, the executor may be held personally liable for misdirected estate funds. Obtaining experienced legal advice is important for an executor to mitigate their potential liability.
The Wills and Estates team at Turner Freeman lawyers can provide professional advice to guide you through the process of finalising a deceased estate. We can provide you with a better understanding of your role and responsibilities so that you understand what needs to happen.
If you would like assistance, please do not hesitate to contact our Wills and Estates lawyers on 13 43 63 or via our online enquiry form.