In the event of the death of a person, their property (including real estate and financials) is distributed among the beneficiaries. The Law of Succession in Australia deals with the distribution of property from a deceased’s estate. And, the Supreme Court of each State and Territory has the jurisdiction to deal with all matters concerning succession.
The primary objective of laws pertaining to wills and estates is to ensure that the deceased property is distributed according to the wishes of the deceased person. This is to avoid the risk of fraud and to minimise mismanagement. The Sydney-based estate lawyers at Owen Hodge Lawyers are here to help you begin dealing with a deceased estate.
What is meant by a deceased estate?
When someone has passed away, all their belongings form their deceased estate. These can include their real estate, house items, vehicles and savings in their bank account. A will is most commonly drawn up before their death, to decipher who will possess their belongings. When it comes to dealing with deceased estates, there are many things that need to be accounted for, including the distribution and administration of the estate.
Distribution of a deceased estate
The distribution of the deceased’s property is supervised by both legislative and common law authorities. The intention of the deceased is valued the most while distributing his/her property. In situations, where a person dies without making a will or the will is void, the property is distributed according to long established law. This is known as family provisions.
The deceased’s property is first distributed amongst the closest family members (spouse, children). In situations, where the deceased has no immediate family members, then the deceased estate is distributed equally among the relatives who are in the extended family of the deceased (cousins, uncles). In extreme situations where the deceased has no family member, the Government distributes the deceased estate in whole to the Crown.
Administration of the deceased estate
The personal representatives are assigned the responsibility to deal with administering a 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 his duties.
The beneficiaries have no right or interest in the deceased property until the executor distributes and disposes the assets and debts of the deceased. The beneficiaries only have a right to sue the executor if he fails to administer the estate diligently and correctly.
Read more: Rights of beneficiaries
Grant of probate
The executor may be asked to prove that he is authorised to administer the will before the assets can be released and this can be proved with the Grant of Probate. To obtain a Grant of Probate, the executor named in the will must apply to the Probate Office of the Supreme Court. If the application is approved, it will prove the authentication of the will and that authorise the executor to administer the deceased’s property.
In situations, where an administrator is appointed, he needs to obtain Letters of Administration before the estate of the deceased is distributed.
Making a claim against a will
A person can transfer his estate to whoever he wishes to, through his will. However, in limited cases, family provision legislation seeks to rectify injustices caused by some wills. The amended Succession Act 2006 (NSW) (“the Act”), significantly extended the categories of people who can make a claim against a will in 2009. However, the claim should be made soon after the death and before the assets in the deceased estate are distributed to the various beneficiaries in accordance with the will.
The 2009 amendments reduced the period of bringing a family provision claim to 12 months from 18 months, from the date of death.
Under the previous legislation, there were four categorised “eligible persons” who could make a family provision claim. The 2009 Act has increased this to six categories, which are enumerated below:
- A surviving husband or wife of the deceased person
- A person who was living in a de-facto relationship with the deceased person
- A child of a deceased person, including an adopted child
- A former divorced husband or wife of the deceased
- A person who was: entirely or partly dependent on the deceased person; or a member of the household of the deceased person
- A person who was living in a close personal relationship with the deceased person
Turn to the experienced lawyers at Owen Hodge
If you have recently suffered a loss in the family, you may be thinking about getting professional help with the distribution and administration of the deceased estate. Our experienced wills and estates lawyers at Owen Hodge can help you through the process. Contact us online or schedule a consultation now at 1800 770 780.
If you’re dealing with a deceased estate, the administration process will typically include:
- Find out whether the deceased has a will
- Arrange a funeral for the deceased
- Acquire the death certificate
- Obtain details on personal assets
- Apply for a Grant of Probate (only if required)
- Obtain Letters of Administration
- Gather deceased’s assets and ensure debts are discharged
- Issue the estate assets to each beneficiary
The process of settling a deceased estate can take anywhere from 6 to 9 months. However, this can sometimes take longer, depending on the complexity of the situation.
According to the ATO in Australia, you must lodge a trust tax return in the same year if these apply to you:
- The deceased estate’s income is more than the tax-free threshold for individuals.
- A beneficiary is listed to receive any of the deceased estate’s income at that income year.
- A beneficiary listed on the estate is not an Australian tax resident.
In most cases, executors and beneficiaries of the will do not need probate when an asset has less value than $50,000.
Here’s what our clients are saying
Many thanks to Christine Vrahas, Alice Holman, and James Kelly for all the time and support that was given leading up to the settlement of my Aunts estate.
Thank You Alice & Team – I would not have survived without you
Dear Alice and the Team,
I would like to thank you and your team for the help and guidance you have given me throughout the year…..
Thank you Alice Holman and Christine Vrahas
Owen Hodge – particularly Alice Holman and Christine Vrahas, with the help of co-partner James Kelly – were efficacious, pragmatic and most reassuring in the eighteen months we went into battle in a probate case….