In the event of the death of a person, the property including real estates and financials is distributed among the beneficiaries according to the testamentary intention of the deceased person. The Law of Succession in Australia deals with the distribution of property and assets of a deceased’s estate.
The Supreme Court of each State and Territory has the jurisdiction to deal with all matters relating to succession.
The primary intention of the laws pertaining to Wills and Estate is to ensure that the deceased estate is distributed according to the intention and wish of the deceased person to avoid the risk of fraud and to minimise mismanagement.
Administration of Deceased Estate
The distribution of the deceased estate is supervised by both legislative and Common Law authorities and the intention of the deceased are valued the most while distributing the property.
The deceased estate is first distributed amongst the closest family members including spouse and children. In situations, where the deceased has no immediate family members, then the deceased estate is distributed equally among the extended family members. In extreme situations where the deceased has no family member, the Government distributes the deceased estate in whole to the Crown.
The personal representatives are assigned the responsibility to deal with the administration of the deceased estate. In many instances, the executors of the Will have been nominated in the Will of the deceased. The Supreme Court can also appoint an administrator to deal with the deceased estate in situations where there is no valid Will or the person nominated to be the executor is unable to discharge the duties.
The beneficiaries have no right or interest in the deceased estate until the executor or the administrator distributes and disposes the assets and debts of the deceased. The beneficiaries only have the right to sue the executor or the administrator if they fail to administer the estate diligently and correctly.
Executors may be asked to prove that they are authorised to administer the Will before the assets can be released and this can be proved with the grant of Probate. To obtain a Probate, the executor named in the Will must apply to the respective Probate Office of the Supreme Court and if the application is approved, it proves the authentication of the Will and that the executor is the person authorised to administer the deceased estate.
In situations, where administrators are appointed, they need to obtain a Letters of Administration before the estate of the deceased is distributed.
An executor or an administrator is a person, who stands in the shoes of the deceased and administers the estate, even though the administrator is appointed by the Court. Their role varies with the type of estate. However, the role generally includes the following:
- Collecting and gathering the real and personal estates to administer the estate properly as per the relevant law;
- Notifying all interested parties including beneficiaries of the Will;
- Providing a sealed Exhibit containing full list of the inventories held within the estate to the Supreme Court;
- Preparing and submitting the total costs involved in administration of the estate to the Supreme Court;
- Providing the relevant Grant of Probate and Letters of Administration to the Supreme Court;
- Finalising income tax returns of the deceased and of his estate; and
- Taking necessary steps to distribute the estate as per the Will.
Other responsibilities of an executor or an administrator are:
- Organising funeral and/or burial or cremation of the deceased;
- Locating the original Will and confirming the same to the beneficiaries;
- Keeping the assets safe, such as securing properties and valuables, paying for insurances and many more; and
- Lodging taxation returns on behalf of the deceased and his estate.
If you are appointed as an executor of a deceased estate, feel free to contact our team of experts at Owen Hodge Lawyers to provide assistance on the administration of the estate. We can also assist you in obtaining a Probate of a Will.