When a person dies somebody has to look after their assets and pay their debts. The person appointment by the Will of the deceased administers the deceased’s affairs and is called “an executor”.
An executor carries out the deceased’s wishes in administering the estate, and is ultimately responsible for the proper administration and distribution of assets to beneficiaries according to the deceased’s wishes. An executor can be a friend, a relative, or a professional executor, such as a trustee company or a Solicitor.
Many people are unaware of the complexities and time consuming nature of an estate administration. Some find the role to be a burden.
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 Probate. This is usually done with the help of a lawyer. 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. The need for a Grant by the Courts has been relaxed over the years, although an application for a Grant is still necessary 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. To determine whether a Grant is needed, the person appointed 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. This is best done through your lawyer.
Where a dispute arises or is likely to arise concerning the Will or the estate, any 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, the person can become personally liable to the beneficiaries.
How to apply for Probate
Anyone appointed 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 for Probate, the executor must:
- Advertise the application
- Lodge a formal application with the Court with an affidavit (a sworn statement) including:
- Proof of the advertisement
- Details about the Will
- Certain details about the deceased person
- The original Will
- Inventory of Assets and Liabilities
- Do a search of the Registry records to indicate a previous Grant has not been made
- Provide a certified copy of the death certificate.
Paying any debts and distributing the assets
Once assets of the estate are called in, any debts should be paid before the estate is distributed in accordance with the Will.
To do this, evidence of the Grant of Probate must be sent to the various organisations where the deceased’s assets were held (ie. the deceased’s banker or share registry). Those institutions then transfer the assets as directed by the executor or the executor’s lawyer.
Land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with the Land Titles Office, together with an application to transfer the land.
Where the deceased owned land in more than one jurisdiction, it will be necessary to apply to the Supreme Court of each jurisdiction for what is known as a reseal of the original Grant of Probate, before the land can be transferred under the Will.
If you need to know any more about administering a deceased estate please call us on (03) 9725 0377 or email email@example.com.