If you need to manage the estate of a deceased loved one, it can be an overwhelming and stressful time. Not only are you having to deal with grief over their death, you have the responsibility of ensuring that their wishes are complied with. This can seem quite daunting or simply time-consuming because of the legal processes involved.
We want to provide you with some simple questions that you may need to ask in order to determine what next steps you need to take.
Is there a Will?
Answer – No, there is no Will
If someone has died without leaving a valid Will, you may find it difficult to commence managing the estate as there are no formal details of how the deceased wanted their estate dealt with.
A person who has died without a Will, is said to have died “intestate” and the estate will be divided according to the rules of ‘intestacy’. The person who administers the estate is referred to as an administrator and will usually be the deceased’s closest next of kin and can apply for ‘Letters of Administration’.
The laws of intestacy in Victoria establish the order of priority for potential beneficiaries of an estate.
This can be a complicated process and we would suggest that where someone has died intestate, legal advice be obtained at the earliest possibility.
Answer – Yes, there is a Will
If someone has made a Will before their death, an executor will have been appointed by the deceased who is required to manage the estate. Executors must at all times act with care and in the best interests of the beneficiaries to the estate and are required to administer the estate as quickly as reasonably possible and in accordance with the terms of the Will.
An executor has an important role and must perform certain responsibilities including:
- Locating and interpreting the Will and identifying the deceased’s intentions;
- Identifying the assets of the estate;
- Protection of the assets including arranging appropriate insurance or taking possession of the assets;
- Obtaining a Grant of Probate (if required);
- Collecting income of the estate;
- Determining any liabilities of the estate and arranging payout of these debts;
- Distributing the estate assets including payment of bequests and transfer of assets to beneficiaries; and
- Attending to accounting and tax requirements for the estate.
Being an executor can be complicated and we would recommend that should you have been appointed an executor, you obtain legal advice at the earliest opportunity.
Do I need a Grant of Representation?
A Grant of Representation is a legal document issued by the Supreme Court, which enables the executor or administrator to deal with the estate assets. It allows the deceased’s money held in banks, managed funds and so forth, to be collected, their debts to be paid, and their property to be sold or transferred. The Grant is proof that the person named in the Grant is entitled to collect and distribute the estate of the deceased.
Many assets of an estate cannot be dealt with without a Grant being provided. These include any real estate, aged care accommodation bonds, bank accounts with a balance over a certain amount and shareholdings.
If the deceased owned only jointly held assets, then a Grant is usually not required to transfer these assets.
What is the difference between a Grant of Probate and Letters of Administration?
There are different Grants of Representation.
Probate
Is obtained when an executor named in the Will makes an application to prove and register the Will and obtains formal authority to administer the estate in accordance with its terms.
Letters of Administration (with Will annexed)
Is similar to a Grant of Probate however the person applying to the Court is someone other than the executor named in the Will.
Letters of Administration
Is obtained when a person dies intestate and is usually applied for by the deceased’s next of kin.
Do I need assistance?
For a lot of people, the administration and management of a deceased estate is unfamiliar territory and can be overwhelming. If you find this to be the case, it is best to seek assistance from a lawyer. Nevett Ford is able to assist clients throughout this process and provide an end-to-end management of estate administration.
Nevett Ford’s Wills and Estates Team are able to guide and assist you through the process of administering an estate. You can contact us at melbourne@nevettford.com.au or phone us on 03 9614 7111.