This will vary depending on your particular circumstances. However, one of the first things you should do is contact a funeral director to discuss the funeral arrangements, taking into account any specific requests the deceased may have made either in their Will or verbally.
You will also need to locate the original Will (if any) to find out who the executors are.
Once the original death certificate has been received from Births, Deaths and Marriages (normally two to three weeks from lodgement of the cause of death certificate by the funeral director) the executors can start to deal with all aspects of the estate administration. This is not to say they cannot do this before then, but most organisations will require a certified copy of the death certificate.
At this stage, depending on the deceased’s assets and liabilities and the family dynamics, it is worth obtaining professional advice on how to proceed. In the long run this can save you time, money and sometimes heartache.
Read about what to expect from estate administration.
Any person who pays for the funeral is entitled to be reimbursed from the deceased’s estate. This is normally a first charge on the assets of the deceased and most banks will release money on receipt of the invoice from the funeral director. However, certain expenses you may think qualify as estate expenses sometimes don’t.
This depends on the amount of work and time involved in finalising an estate. At an initial meeting we will discuss what needs to be done and discuss with the executors who will be responsible for doing what. Some clients prefer us to handle everything while others prefer to take a more hands on approach, which keeps the costs down.
If a Will is unable to be found, then the deceased’s next of kin would need to satisfy the court of their entitlement and apply for a grant of letters of administration on intestacy. There is an order for who qualifies as next of kin in the legislation.
A Will must be in writing and needs to be signed and dated by the Willmaker (or someone else in the Willmaker’s presence and at the Willmaker’s direction) in the presence of two witnesses. The witnesses must also sign in the presence of each other and the Willmaker. Under certain circumstances an unsigned document, typed or handwritten notes or letters may be accepted by a court.
Executors are required to produce any document(s) to the court that mentions giving away assets. The requirement is regardless of whether it is signed or not or dated or not, and also applies to electronic documents. The court then makes a decision about whether they are to become part of the Will (as a Codicil) or not. This is a complex, lengthy and expensive process. It creates uncertainty and stress for the executors and the beneficiaries as well as additional expense to the estate.
Probate is the procedure of obtaining the court’s official recognition of the deceased’s Will as well as endorsing and protecting the right of the personal representative to administer the deceased’s estate.
If there is no Will, or an executor renounces their role so that there is no executor to administer the deceased’s estate, then letters of administration is the process of the court granting and endorsing a person as the deceased’s personal representative to administer the deceased’s estate, either in accordance with the deceased’s Will, or, if there is no Will, in accordance with the rules of intestacy.
Essentially, a grant of probate or letters of administration enables a personal representative to formally prove their title to acquire assets forming the deceased’s estate.
Probate is not always required. Whether probate is needed will depend largely on the assets in the estate and how they are owned.
Probate is usually necessary when there are significant assets such as large sums of money in bank accounts, numerous real properties or complex assets.
Probate helps to protect executors against possible claims as they are administering the estate in accordance with a court approved Will.
Although Queensland currently does not require a grant of probate or letters of administration (Grant) to deal with every property transaction, other states do. Some institutions like banks and superannuation funds may require a Grant to allow you to deal with accounts. The value of any shares may also determine whether you require a Grant.
There are various ways of dealing with this aspect. We will discuss this in detail at an initial meeting.
There is no strict timeframe imposed on an executor as to when they must distribute assets to beneficiaries. However, we recommend that executors do not make any distributions until at least six months from the date of death. The reason for this is any person who wants to bring a family provision application against the estate must give notice within six months of the date of death. If an executor distributes estate assets before the six month date and a family provision claim is then notified and made within the time limits, the executor could be held personally liable to that applicant. Waiting the six months, and advertising of the intention to distribute if you have not advertised for your application for a Grant, gives the executor protection against that personal liability if a claim is notified outside the time limit and there is nothing to claim against.
Also, interest is payable on gifts of money made under a Will if the estate administration takes longer than one year to finalise.
A number of avenues are open to the personal representative in cases where the beneficiaries cannot be located after the usual enquiries, advertisements and investigations have proved unsuccessful.
If a specific gift has been provided in the Will and that item has ceased to exist or has been sold or otherwise disposed of by the deceased then that gift may fail. There are a number of issues that will need to be considered before any decision can be made about whether it is as simple as that.
A family trust is a separate entity to the deceased and as such a trust’s assets do not form part of a deceased’s estate. Instead, the family trust will continue in accordance with its trust deed.
If the deceased was the trustee of the family trust, that is, the controller of the family trust, then it is important to determine who the new trustee is. The trust deed should provide what happens on the death of a trustee. In some cases the trust deed will nominate the deceased’s legal personal representative as the new trustee or provide that the deceased may appoint a new trustee in their Will.
Most deeds have a role (often called the appointor or the principal) for a person who can remove a trustee and appoint a new trustee. That person may be the executor or legal personal representative. However, the deed may nominate a particular person to take on that role. The Will may nominate someone to take on that role.
Unpaid present entitlements or loans owed to the deceased by the family trust are a debt that the executor is required to collect. This can cause unforeseen issues if there is a business or single asset in the trust.
Whatever the circumstance, you should seek legal advice to ensure that the appointment of the new trustee is effective and in accordance with the trust deed.