Who looks after the deceased’s estate ?

If the deceased left a Will appointing an executor then that person looks after the assets of the deceased and pays the debts. The executor will need to apply for a Grant of Probate if the deceased held real estate, shares or substantial funds in a bank or building society. A Grant of Probate is a Court Order stating that the Will is valid and the executor(s) can distribute the estate according to the wishes of the deceased expressed in the Will. If the estate is small, assets are in joint names and there was no real estate held, banks and building societies have different rules for allowing the estate to be finalised without a Grant of Probate.

How is the estate distributed where there is no Will ?

If there is no valid Will, Letters of Administration are required to deal with the assets and there must be an application to the Court for the appointment of an administrator who will distribute the estate in accordance with the laws of “intestacy”. The laws of intestacy will decide, taking into account a number of factors, the beneficiary(ies) and in what proportion(s) they are to inherit. Similar to a Grant of Probate, a Grant of Letters of Administration is required by some organisations, including the Department of Lands, before they will release assets of the estate to beneficiaries.

What does an executor have to do ?

The executor is responsible for:

  • taking charge of the deceased’s assets and property
  • ensuring that the funeral, administration expenses, debts and taxes are paid
  • the assets distributed to the beneficiaries in accordance with the provisions of the Will

To do this, the executor will need to find out and list everything the deceased owned or entitled to own. For example:

  • their home
  • investment properties
  • motor vehicles
  • cash
  • bank or building society accounts
  • shares and other investments
  • insurance policies
  • superannuation
  • furniture and household appliances
  • jewellery
  • employee entitlements

Solari & Stock assist the executor in all the steps required to be undertaken by the executor.

After probate is granted, what does the executor have to do ?

After the Grant of Probate is made the executor transfers the assets to the beneficiaries and/or collects the assets, pays the debts of the deceased and funeral expenses have been paid, the executor can pay the expenses (such as legal fees) incurred in the administration of the estate. Once all of the estate’s debts have been paid, the balance of assets can be distributed in accordance with the Will or sold and the proceeds divided amongst the beneficiaries. A bank account may need to be opened in the name of the estate into which all funds belonging or in the name of the estate must be deposited and from which debts must be paid. The estate may also be liable for income tax and possibly capital gains tax depending on the date and cost of acquisition of the deceased’s assets.

Are there any other steps involved ?

There are many steps involved, some required by legislation and others to protect the estate. For example, the executor cannot distribute the remainder of the estate until at least 6 months has passed since the date of the deceased’s death and a notice has been published requiring anyone with a claim against the estate to provide particulars of their claim within no less than 30 days.

Feel free to consult one of the experienced estate solicitors at Solari & Stock to ensure everything is properly looked after and the legal requirements for finalising a person’s affairs are complied with.

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