Estate Administration

Probate is the process of proving and registering in the Supreme Court the last Will of a deceased person. Once granted probate gives the executors appointed by the Will the legal right to deal with the assets of the deceased.

Where a person dies without a Will in order to deal with their assets a person, usually their next of kin need to apply to the Supreme Court for letters of administration which authorise the next of kin to deal with the assets of the deceased in accordance with a pre-determined formula.

There is no centralised Will registry. To find the will you need to search the deceased personal possessions and paperwork and if unsuccessful try the following:

·         Contact the deceased's bank to see if they held a safety deposit box or had documents held in safe custody or securities;

·         Check the deceased person’s computer and smart phone – there may be an electronic copy of a will or evidence of their testamentary intentions.

·         Contact local solicitors where the deceased person resided throughout their life and ask if they hold a copy of the Will for the deceased (look for any paperwork or correspondence from solicitors).

The executor or the next of kin intending to apply for letters of administration where there is no Will is responsible for making the funeral arrangements if the will maker has not already made those arrangements. The executor should follow any directions left by the will maker as to the funeral arrangements but is not bound to do following those directions.

If the executor is not an immediate family member, then the executor should consult with the family about the funeral arrangements. The reasonable cost of the funeral is an expense of the estate, but the executor should be careful not to incur expenses beyond the available funds in the estate.

Will readings are a thing of the past when due to a lack of literacy in the community it was necessary for the Will to be read to affected parties. Today a reading of the Will only occurs in movies or books not in real life.

In Victoria, a person who has possession of the Will of a person who has died must allow the following to inspect and make copies of the Will:

·         any person named or referred to in the will;

·         any person named or referred to in any earlier will as a beneficiary;

·         any spouse of the deceased at the date of death;

·         any domestic partner of the deceased;

·         any parent, guardian or children of the deceased person;

·         any person who would be entitled to a share of the assets if the deceased person had died without a will;

·         any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if the deceased person had died without a will;

·         any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the will are given to the beneficiaries but executors are usually encouraged to be open, honest and in regular communication with beneficiaries and to provide information on the progress of the estate to the beneficiaries.

An executor is entitled to be reimbursed by the estate for any amounts he or she has paid on behalf of the estate, provided they were appropriate amounts. Often executors will receive no other payment or benefit. However, an executor may be paid or receive "executors commission" where:

·         the will maker sets out in the will that the executor is entitled to be paid for his or her efforts;

·         where a gift to the executor is included in the will in lieu of the right to apply to the court for payment;

·         if all the beneficiaries agree on an amount the executor should be paid from the estate;

·         if the Supreme Court orders that the executor is entitled to be paid.

The time it takes to finalise an estate depends on what must be done and how long it takes it obtain the required information from third parties such as banks and companies in which the estate has shares.

In Victoria the law says that executors do not have to distribute the estate within 12 months of the death of the will maker and we do not recommend that estates be distributed fully before six months from the time of probate which is the deadline for claims to be made against the estate. All the estate’s debts including tax debts should paid before the estate is finalised.

There is no inheritance tax in Australia with all states in Australia abolishing death duties in 1979. However, there are still tax consequences associated with the administration of an estate and the executor should consider issues in relation to capital gains tax and GST.