Overview

The legal process to prove the validity of a Will is known as Probate. Probate is actually an Order passed by the Supreme Court confirming that a Will is the last valid Will of the deceased and it allows an executor, named in the Will, to collect and distribute the estate in accordance with the terms of the Will. The aspects to be covered in this article include who is an executor and duties of the executor including funeral arrangements, obtaining Probate, administering the estate, paying debts and distributing the estate.

Executor

Executors are usually nominated in the Will of the deceased. Where there is no valid Will or the person nominated to be the executor is unable or unwilling to discharge the duties, the Supreme Court can appoint an administrator to deal with the estate.

An executor is thus a person, who stands in the shoes of the deceased and administers the estate.

The duties of an executor are manifold and some of those are discussed below.

Funeral Arrangements

Executors are required to arrange a funeral, burial or cremation for the deceased as soon as possible after the death. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will.

Care should be taken to ensure that the deceased’s wishes are carried out, and the Will should be checked for any specific directions.

At the same time, the executor is not required to seek agreement from the deceased’s family before finalising any funeral arrangements. This is particularly important when religious beliefs need to be respected.

All costs or expenses incurred from the funeral are paid from the estate, before the beneficiaries receive their share of the estate.

Probate

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 Probate Office of the Supreme Court and if the application is approved, it establishes the authenticity of the Will and the capacity of the executor to administer the estate.

To obtain a Grant of Probate from the Court, the executor should make an application within 6 months of the deceased’s death or give a reason to the court for the delay regarding the case of an application being made more than 6 months after the deceased’s death.

The deceased’s assets are completely frozen until Probate has been granted. However, the executor has access to the deceased’s bank account to cover the funeral costs and expenses, and any Court fees related to acquiring the Grant of Probate.

Administration Of An Estate

Executors have authority to deal with assets and liabilities of the estate after the Probate has been granted by the Court. They need a copy of Probate, Death Certificate and any other forms of identification and documentation requested by the asset holders in order to officially register and transfer, or sell the assets of the deceased.

Assets which are jointly held with another party or person do not form part of the estate and cannot be called in as part of the estate. The executor needs to identify these jointly held properties of the deceased and disclose it to the Court during the application for Probate.

Superannuation also does not form part of the estate. A superannuation fund is a type of Trust and is governed by rules in a Trust deed. In the case of a self-managed superannuation fund, it may permit members of the fund to make death benefit nominations which are binding on the Trustee of the fund and which could include a nomination that fund benefits be paid to a deceased member’s estate executor.

Payment Of Debts

Executors are required to pay off all the deceased’s outstanding debts after the estate’s assets have been called in and all claims have been prosecuted.

Executors are aware of all the deceased’s outstanding debts as part of the process they go through when applying for a Grant of Probate.

The order and manner in which these debts will be paid off are determined by whether the estate is solvent which means there are enough assets to cover all the debts or insolvent which means that there are insufficient assets to pay all the debts.

Irrespective of whether the estate is solvent or insolvent, there are certain expenses which need to be paid before any debts. These include funeral expenses, testamentary process (probate) expenses and administration (including legal fees) expenses.

Distribution Of An Estate

Executors are required to distribute the estate among the beneficiaries keeping in mind the testamentary intention of the deceased person.

The primary intention of the laws pertaining to Wills and estate are 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.

 

How Can We Help You?

Matters relating to deceased estates can be complex and often involve a substantial amount of paperwork. At Owen Hodge Lawyers, we have an experienced team who can help you through the legal proceedings and guide you in every step of the process. We look forward to helping you to gain access to your rightful claim.

If you are appointed as an executor of a deceased estate, feel free to contact our team of experts at Owen Hodge Lawyers on 1800 770 780 to provide assistance on the administration of the estate. We can also assist you in obtaining a Probate of a Will.

Source Material Summary

How can we help?


Fill out the form below and we’ll get in touch with you to discuss how we can help