By Annalyse Betts and Kerin Cotchett
At Elringtons, we understand the loss of a loved one is extremely difficult. This can often be made harder with the responsibility of being tasked with the administration of their estate.
If you are an executor named in a Will, we have prepared this guide to simplify what can be a difficult obligation.
Step One: Funeral Arrangements
Step Two: Obtain the Original Death Certificate and locate the original last Will
Step Three: Identify the assets
Step Four: Probate. What is a Grant of Probate and do I need it?
Step Five: The administration of the Estate
Frequently asked questions
- What about Insurance? It is important that insurance over any property, particularly real estate, continues after the death. This is important, because in the event of an accident or unforeseeable event, such as a fire, the executor may be in breach of their duties including preserving assets of the estate.
- How long will the administration of the estate take? It is important to remember that every estate is different. The time frame is dependent on what type of assets need administration, whether Probate is required and other factors such as third party processing times.
For a very simple estate, the administration may take a couple of months, however, for more complex estates, the administration could take years.
Our estates team will be able to advise an estimated timeframe for your particular matter.
- What happens if there is no Will?
If someone dies intestate (without a Will) the court will appoint an Administrator who will distribute the estate in accordance with legislation.
In NSW, under the ‘rules of intestacy’, relatives are entitled to a share in the deceased person’s property. As the next of kin, relative or close friend of the deceased, you may need to apply to the Supreme Court of NSW for letters of administration to distribute the deceased’s estate.
In the ACT, if a person dies without a will with no identifiable heirs including cousins, under the laws of intestacy, the ACT Government will be the beneficiary.
The distribution of the property of a person who dies intestate is the responsibility of the administrator of the estate. Typically the administrator is a person with an interest in the estate and is chosen by the court having jurisdiction over the person’s property.
It is common for the Public Trustee and Guardian to act as administrator in such cases.
Please see our ‘Why Should I make a Will?’ article for further information about intestate estates.
- What do I do with personal property?
Personal property, such as clothing, books, furniture, towels and cutlery is usually dealt with directly by the executor. The family may arrange to have these items cleared out, however, in the event of a dispute or argument, the executor may have to make a final decision. It would be best to seek legal advice in these circumstances.
- Will there be Tax?
Whether or not there will be a tax liability is dependent on what types of assets or income are within the estate. We recommend the executor see an accountant in relation to the final tax returns of the deceased, but also whether the estate needs to file a tax return of its own.
Please do not hesitate to contact our office when you are ready to meet with our team regarding the administration of your loved one’s estate.
For more information on our Wills and Estate Planning expertise, please see our Wills and Estate Planning page.