Where to start with a deceased estate

Managing the estate of a deceased friend or loved one can be a very overwhelming task. Aside from processing the sadness of loss, you have the added pressure of honouring someone’s wishes while trying to understand jargon in a complicated legal process.

The first question you need to ask is simple: do they have a Will?

There is no Will

If your loved one has passed away without a Will, there will be no executor appointed to start work on the estate and there won't be any formal instructions to help you determine what happens with their estate. Things can get very complicated, very quickly.

We understand that losing someone close to you is very distressing. In addition to the emotional strain of dealing with the loss, you may need to quickly take care of practical matters such as organising their funeral, contacting different organisations (such as utility providers and superannuation funds), and working out the assets and debts of the estate.

Having expert help and advice can make all the difference.

How is an intestate estate dealt with?

Dying without a Will is known as “dying intestate”. This is not an ideal situation, but it's far more common than you think. So, where do you start?

If your loved one has passed without a Will, an application needs to be made to the Court to appoint a person to act as the Administrator of the estate.  This is because there is no executor appointed to manage the affairs.

This application is referred to as an application for a Grant of Letters of Administration on intestacy and it’s the first thing you need to do. The process can be complex and you may need to have a lawyer assist you in making the application. 

In all cases where it is necessary to apply for a Grant of Letters of Administration, it is usually the person with the greatest entitlement to the estate, as determined by applying the intestacy formula, that applies for the Grant. For example, if a spouse or partner survives the deceased, they would usually bring the application. If the deceased is survived by children (and no spouse/partner) then one or more of them could apply.

There is a Will

When someone names you as the executor of a Will, you become responsible for their estate and their final wishes on their death.

Being an executor of a Will can feel overwhelming for some people, but it doesn’t need to be.

Your main role as executor is to represent the person who has passed away and wrap up all of their personal, financial and legal affairs. Ideally, the Will-maker will have explained how they’d like you to carry out your duties in their Will.

Here is a list of the main responsibilities you now have as an executor of a Will:

1. identify the assets and liabilities of the estate,
2. protect these assets (ie. store them safely where necessary and make sure they’re insured),
3. apply to the Court for a Grant of Probate where necessary,
4. collect the assets of the estate and hold them on behalf of the estate prior to them being distributed,
5. make sure all estate liabilities, including tax, have been paid,
6. defend the estate from any challenges, and
7. distribute the estate to the beneficiaries in accordance with the Will.

Do I have to accept the responsibility of being the executor?

No. You are not legally obliged to take up the appointment of executor even if you agreed to accept the role while the Will-maker was alive. A lot can happen in the time between the writing of a Will and the time when the administration of an estate is required. 

What is the difference between a Grant of Probate and a Grant of Letters of Administration?

An application for a Grant of Probate is made to the Court by an executor appointed by a Will. The Grant of Probate confirms that the Will is valid and that the executor has the authority to deal with the assets of the estate.

An application for a Grant of Letters of Administration is usually made to the Court where there is no Will and, therefore, no appointed executor. In this case, a beneficiary of the intestate estate will apply to be granted the formal right to administer the estate as Administrator. You may also need to make this type of application when there is a Will but the nominated executor refuses or is unable to take up the role.