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Deceased Estates

When faced with the death of a family member, many people find that engaging a lawyer to administer the estate gives them the peace of mind that the legal side of things is being taken care of.

At Mildwaters Lawyers, we have extensive experience in the administration of deceased estates, including estates involving simple valid Wills, estates where there is no Will, estates involving complex Wills, estates where the Will has deficiencies that require special applications and contested estates.

For your information, we have provided answers below to some commonly asked questions by our clients.

Is there a rush to sort out deceased estates?

The short answer is no.

There is no time frame within which an estate must be wound up.

In the short term, you can just concentrate on the most pressing things such as:

  • Checking the Will to see if there are any funeral wishes in it
  • Informing relatives and friends
  • Planning the funeral.

Who pays for the funeral?

The executor of the will has the authority to arrange the funeral and the funeral expenses are generally paid out of the estate.

Although bank accounts are generally frozen until an estate can be sorted out, banks will usually release funds to pay for the funeral in full, prior to the administration of the estate being completed.

If someone other than the executor arranges the funeral, then they can potentially put themselves in a position where they may become liable to pay the funeral account, if the executor denies their claim to have the funeral account paid from the estate.

Do I need a lawyer?

You can administer an estate without the help of a lawyer.

How challenging the administration of the deceased estate will be, will depend on various things.

If the estate consists of a bank account with funds of less than $50,000 and some personal items and other similar assets that can be distributed without a grant of probate, then you may not need a lawyer to sort the estate out.

If a grant of probate is required, then it will be more difficult to administer on your own.

Circumstances in which probate will be required include:

  • Where there is land registered in the name of the deceased in their sole name or as a tenant in common
  • Where the bank accounts held in the name of the deceased total more than $80,000
  • If there is an accommodation bond due to the estate by an aged care facility of over $80,000

You may also need a lawyer to help sort through the paperwork and fill out all the forms required, as the amount of paperwork, the documents required to be included and the persistence required to redeem assets such as superannuation, can be challenging at the best of times, let alone when you are going through an emotionally difficult time.

What about jointly-owned assets?

Assets owned by the deceased person in joint names with another will automatically revert to the surviving owner by the registration of the death of the deceased owner.

In the case of bank accounts, your bank will generally require a copy of the death certificate to register the change.

In the case of land, an application to register death by survivor must be prepared and registered with the Lands Titles Office.

What is probate?

Probate is the process of having the Will proved and registered in the Supreme Court of South Australia.

It is generally required by the law of South Australia, where an estate is worth more than $80,000 or where the estate contains real estate.

Once probate has been granted, the administration of the estate can proceed.

Who applies for probate?

The executor of the Will usually applies for probate.

If there is more than one executor, one of them, all of them or a combination of executors can apply for probate.

What is required to apply for probate?

Applying for a grant of probate requires the preparation of the following documents:

  • Executor’s Oath
  • Draft Grant of Probate
  • Affidavit of Assets and Liabilities

The Affidavit of Assets and Liabilities sets out the assets and liabilities of the deceased as at the date of death and includes the value of each item at that time.

Sometimes additional documents are required to accompany the usual documents prepared to apply for probate.

This can occur if, for example, the Will has not been prepared in accordance with the law.

How long does it take to get a grant of probate?

If an estate is straightforward, it generally takes about four weeks to prepare the probate documents, four to six weeks for the grant of probate to issue, and another four to five weeks to finalise the administration.

Therefore, the administration of a simple estate requiring a grant of probate can generally be completed in three and a half to four months.

This time frame can be longer for numerous reasons including:

  • If there are assets such as a partnership interest that require work by an Accountant to complete financial statements to determine the value of the partnership interest so that this can be included in the Affidavit of Assets and Liabilities
  • If there is a deficiency in the Will that requires additional documentation to be prepared after taking further instructions from family members
  • If the executors are not in agreement about any facts required to prepare the probate documents
  • If there is a caveat filed in the Supreme Court challenging the validity of the Will

What happens to deceased estates if there is no Will?

If there is no Will, the law of intestacy applies.

This law provides for how the assets of the estate are to be distributed.

It also describes who has the right to make an application for Letters of Administration (which is a similar process to applying for Probate).

The law of intestacy in South Australia states that if a person has a spouse and children and they die without a Will, then the spouse receives all of the personal effects of the deceased, the first $100,000 of the estate and a half share of the rest of the estate. The remaining half of the rest of the estate is shared between the children of the deceased.

The effect of the law of intestacy depends on whether the deceased had a spouse, a domestic partner or children or some of these or all of them.

What do I need to do if I have been left out of a Will and I want to make a claim?

Firstly, please seek legal advice immediately as there are time frames within which you need to act if you are to take advantage of your right to make a claim.

Next, compile a list of your assets and liabilities and their value to give to your lawyer so that your lawyer can give you proper advice about your entitlements.

And, finally, make sure that you act promptly in accordance with your lawyer’s advice to ensure that you protect your right to make a claim.

Useful links

The following links provide access to further information about the administration of estates that you might find helpful.

 

Image: Memorial Day. York, Maine by Šarūnas Burdulis via Flickr. CC BY-SA 2.0

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