Deceased Estates

An executor is a person appointed by the deceased in his or her Will to administer the estate or if the deceased died without a Will, an administrator will administer the estate.  An administrator is usually the deceased’s next of kin.  

If someone has died without leaving a valid Will, they will 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 complicated and we would suggest that where someone has died without a valid Will, legal advice be obtained.

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.

The different Grants made by the Court are:

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 (without a valid Will) and is usually applied for by the deceased’s next of kin.

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.

No, however if more than 3 years from the deceased’s date of death, you will need to provide reasons for the delay in your Application. 

• Review the deceased’s final Will (if located)

• Ascertain the deceased’s assets and liabilities as at their date of death

• Determine whether a Grant of Representation is needed

• If a Grant is required, which type should you apply for?

• Advertise your intention to apply for a Grant

• Prepare the relevant Application and supporting documents required

• File the Application with the Probate Office

• Receive the Grant

• Redeem any assets such as bank accounts, superannuation, etc.

• Finalise any remaining taxation issues

• Transfer or distribute the estate assets in accordance with the deceased’s Will or intestacy laws

An Applicant must publish a notice of the intended Application for a Grant through the Supreme Court of Victoria.  This allows the deceased’s creditors to make a claim on the estate, and also provides an opportunity for other interested parties to file an objection if they believe they have a claim to the estate.

While the Grant of Representation should be received within 4-6 weeks of being filed, the timeframe for the whole estate administration process will vary depending on the estate assets, beneficiaries and terms of the Will.   Sometimes a Will provides people to receive a continuing benefit from the estate.  For example, the deceased might have wanted one beneficiary to receive regular payments over a long period, or might have wanted money kept for a beneficiary until a certain age. 

Once you have the Grant, you must gather in all of the deceased’s assets and take steps to pay any debts or taxes owing by the deceased.

Depending on the assets owned by the deceased at the time of death, and what is stated in the Will, this could include closing their bank accounts, acquiring any death benefit payable under a superannuation policy, selling or transferring assets to the beneficiaries, including real estate and shares. If assets are liquidated, a bank account will have to be opened in the estate’s name, into which any sale proceeds should be deposited, and from which creditors must be paid.

Once the assets have been collected, you will need to ascertain the debts owed by the deceased at the time of death. This includes funeral expenses and income tax.  If you have paid for expenses relating to the estate, you are entitled to claim reimbursement.  

You must also finalise any tax returns for the deceased, as well as for the estate (if required) and pay any outstanding income tax owing to the Australian Taxation Office.

Once all debts have been paid, you can distribute the assets to the beneficiaries in accordance with the Will or intestacy rules if there is no Will.  It is important to administer the estate accurately, as some family members may be aggrieved if they are not provided for.

As the executor/administrator, you must prepare a report and Statement of Account for the beneficiaries showing details of the assets, proceeds of any sale of assets, and expenses paid.

An executor is entitled to be reimbursed by the estate for any amounts they have paid on behalf of the estate, provided they were appropriate amounts and may be remunerated in certain circumstances.

Any payment to an executor is referred to as a commission and in Victoria, it cannot exceed 5% of the total value of the estate assets. 

We know that advice should not come at an exorbitant cost. Nevett Ford offers access to experienced lawyers at the most affordable rates. We are able to offer you a fixed fee for our services in most instances.  It is worth noting that the costs associated with acting as Executor/Administrator, such as our legal costs, are taken from the estate prior to distribution.

When we first meet with you we will ascertain all the information required to carry out the initial steps of the estate administration however there is certain information and documents you will need to provide. While you may not have them right away, at some point we will need the following:

• Documents:

  • Will (if any)

  • Death Certificate

• Information:

  • Assets and liabilities of the deceased

  • Deceased’s personal details

  • Executor/Administrator’s personal details

  • Beneficiary names and contact details