Dealing with Deceased Estates - Executor Duties
Once a person passes away, their assets and liabilities need to be looked after. Although the person is no longer here, his or her affairs must be finalised by someone with the authority to do so. If the deceased person left a Will, the person appointed as their “executor” is responsible for following the terms of their will and finalising the affairs of the deceased. This will include collecting their assets and paying out any debts. .
It is important to note that the role of an executor is not formalised until Probate has been granted, and without a Grant of Probate, the executor is not protected against liability when administering the estate.
Most people are unaware of the complexities and time involved in administering an estate and may find the role of executor to be a burden. Indeed, the executor’s role is not necessarily an easy one!
What happens if someone dies without appointing an executor?
If no Will is left by the deceased, or their Will fails to name an executor, usually someone will apply to be an “administrator” of their estate. The Court Order required in this circumstance is called “Letters of Administration”. As estates involving administration are more complex, we recommend seeking legal advice.
What are the legal steps that are taken after someone dies?
The executor of a Will may need to make an application to the Supreme Court for a Grant of Probate. This is usually done with the help of a lawyer. A Grant of Probate is a Court Order declaring a deceased's Will valid and that the person named in the Will as the executor can finalise the deceased's affairs.
It is not always necessary to get a Grant of Probate however this will depend on the nature and extent of the assets of the deceased. An application for a Grant of Probate will still be required in many cases.
When do I need to apply for Probate?
The requirement to apply for a Grant of Probate will depend upon the nature of the assets of the estate and where they are located. To determine whether a Grant is needed, the person appointed as executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. For example, in New South Wales, if the deceased was the owner of real estate in New South Wales, a Grant of Probate is required to deal with the deceased real estate. This is best done through your lawyer.
Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate (i.e. someone acting as executor without having a grant of Probate), the person can become personally liable to the beneficiaries. A Grant of Probate also offers protection to an executor when distributing the estate to beneficiaries.
How to apply for Probate
Anyone appointed as an executor under a Will must firstly determine the deceased's assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.
In making an application to the Supreme Court, the executor must:
• advertise the application
• lodge a formal application with the Court including a Summons, the original will and an affidavit (a sworn statement) containing:
• details about the deceased person
• details about the Will including the beneficiaries
• proof of the advertisement
• the death certificate (original or a certified copy)
• values of the deceased assets as at their date of death, called an “Inventory of Property”
It would also be prudent to do a search of the Court Registry records to indicate a previous Grant has not been made or applied for by someone else.
Paying any debts and distributing the assets
Any debts of the estate must be paid before the estate is distributed, then the executor administers the estate in accordance with the will.
After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased's assets were held (ie. the deceased’s banks or share registries). Those institutions then transfer the assets as directed by the executor or the executor’s lawyer.
Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with NSW Land Registry Services, together with an application to transfer the land.
Where the deceased owned land in more than one jurisdiction, it may be necessary to apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate, before the land can be transferred under the Will.
If you need to know any more about administering an estate please call us on 02 9212 1099 or email firstname.lastname@example.org