Our team will support you through the Estate Administration process on the death of a loved one.
We appreciate that a death of someone important to you is difficult and we endeavour to work at your pace to assist you with the winding up of their affairs.
We encourage everyone to have a Will. If you don’t already have one, please fill in our Wills checklist and email it to our office and we will prepare one for you. (CLICK HERE TO VIEW WILL CHECKLIST)
There are many matters to be attended to, including:
- Working with the beneficiaries (those who are referred to in the Will to receive an asset)
- Writing to the bank, insurance companies and places where investments are held, to advise them of the death of your loved one
- Preparing the necessary High Court documents and filing with the Court
- Managing and protecting the assets of the estate
- Paying tax and debts
- Collection of any monies owing to the deceased
- Transferring any joint assets to the survivor
- Legal issues, including dealing with any claims
- Interim and final distributions
- Preparing accounts
- Regular reporting to beneficiaries
- Dealing with any disputes
- Dividing up the estate (and if required this may include selling things)
Before the assets of the estate can be transferred from the deceased to the beneficiaries, High Court approval must be given to the executors or persons who are entitled to administer the estate.
[Approval from the Court is not needed when where the estate is a “small estate”. The Administration Act defines a small estate as an estate where there is no real property (land) and no one individual asset exceeds $15,000.00 in value]
The two most common forms of approval from the High Court are Probate and Letters of Administration.
If there is a Will, and the executors under the Will are willing and able to act as Executors, then we apply for a Probate order confirming the Will and seeking authority to deal with the estate’s assets. The Court is unable to grant Probate unless seven (7) days from the date of death have passed. It can take between two (2) to six (6) weeks after the application is made to the Court to receive the grant of Probate from the Court.
Letters of Administration
If there is no Will, or the Executors under the Will are unable or unwilling to act as Executors, then we will apply to the High Court for a grant of letters of administration giving the appropriate family member authority to deal with the estate assets. As with Probate, the Court is unable to grant Letters of Administration, unless seven (7) days from the date of death have passed and it can take between two (2) to six (6) weeks after the application is made to the Court to receive the grant of Letters of Administration from the Court.
The Administration Act 1969 determines who Letters of Administration can be granted to. Where there is a spouse, civil union partner or de facto partner, they will usually be the party to seek the application of Letters of Administration.
Frequently asked questions on Estates:
- What are executors and trustees?
Wills usually appoint one or more people as “executors and trustees”
Executors must locate the Will, are responsible for arranging the funeral and administering the Will to ensure that the final wishes of deceased are respected.
If the Will requires any estate assets to be held in trust, then the trustees are responsible for this (the Executors and Trustees are usually one and the same person). The role of the trustee continues until everything is finally paid out.
- Is Joint Property Part of an Estate?
Any property that is owned by the deceased with one or more persons jointly will, on their death, be transferred to the surviving owners. This property will not fall into and form part of the deceased estate.
- Can wills be challenged?
- How can they be challenged?
The Family Protection Act 1955 provides for those who are entitled to make a claim if they believe that they have not been adequately provided for. Those persons include the spouse, partner, and/or children of the deceased. If any of the deceased’s children have died, leaving children of their own, then those grandchildren are also entitled to make a claim.
The Property (Relationships) Act 1976 gives a deceased person’s spouse or partner the choice to elect to make an application under that Act for a division of relationship property, rather than taking according to the Will. The spouse or partner MUST make the “election” within six months from the date that probate or letter of administration is granted.
Under the Law Reform (Testamentary Promises) Act 1949, a person who provided services to the deceased may be entitled to challenge a Will, if they could establish that the deceased promised to include them in the will in return for services that they provided.
- How long will it take?
The timing to settle an estate depends on the complexity involved.
When dealing with an estate we would provide you with an indication of the time frame as best we can, and keep you advised during the process if that time frame has changed.
Claims can be made against an estate up to one year (and in some cases even longer) after the date of grant of probate or letters of administration. Where a trustee distributes assets within the first six-month period after the date of the grant, they may be held personally liable for those assets if a claimant is successful. Therefore, to reduce the liability of the trustees, we usually recommend waiting for the six-month period to expire before distributing any assets. In cases where there is very real possibility of a claim, then we recommend that the trustees do not distribute the estate until the twelve months have passed.