When a loved one dies…
When a family member or loved one dies it is a very difficult and stressful time. It is even more confusing if you are the Executor of the Will, or the next of kin of the person who has died without a Will. Trying to understand what needs to be done in relation to administering an estate, is daunting, especially under such sad and emotional circumstances.
Gordon Garling Moffitt understands what a difficult time this is for you and your family. Our lawyers and legal staff deal with these circumcumstances on a daily basis and can help you navigate your way through the process as smoothly as possible.
Administering the Deceased Estate
When a person dies, any assets that they own will be transferred to the trustees then ultimately to the beneficiaries who have been named in the deceased person’s Will. If the deceased person has not made a Will, the assets will be transferred to the persons entitled under the Rules of Intestacy.
The Role of the Executor/s
Assuming there is a Will, then the Estate is administered by the Executor/s, who the deceased has named in the Will. It is the Executor’s responsibility to:
- identify all assets and liabilities in the name of the deceased;
- call in and collect the assets of the Estate;
- pay all liabilities and taxes of the Estate;
- obtain a Grant of Probate or Letters of Administration, where necessary;
- deal with any claims made against the assets of the Estate by creditors and/or people challenging the Will under the Succession Act;
- interpret the Will and identify all beneficiaries; and
- distribute the Estate’s assets in accordance with the Will or Rules of Intestacy (where there is no Will).
The role of the Executor is important, however, many of the tasks and responsibilities of the Executor should be performed by or with the assistance of a Solicitor. This is because the administration of the Estate carries risk of personal liability for the Executor and will often involve the consideration of complex legal issues.
Frequently Asked Questions
WHAT IS A GRANT OF PROBATE?
A Grant of Probate is a Court Order issued by the Supreme Court of New South Wales that authorises an Executor to manage the estate of the deceased person in accordance with the provisions of the deceased’s Will.
WHEN IS IT NECESSARY TO OBTAIN A GRANT OF PROBATE?
If the deceased only owned assets that were held jointly with another person, then Probate is not required to transfer those assets. Those assets will pass to the surviving joint tenant at the moment of death.
However, a Grant of Probate will be required if the deceased owned bank accounts, real estate, shares or superannuation benefits with balances of over $15,000.00 (depending on the requirements of the financial instituion that is holding the asset).
WHAT ARE LETTERS OF ADMINISTRATION?
A Grant of Letters of Administration is a Court Order issued by the Supreme Court of New South Wales, that allows the administrator/s to manage and distribute the deceased’s assets. Letters of Administration are applied for when the deceased either did not leave a Will or when the executors named in the Will are not available.
WHEN TO PAY FUNERAL EXPENSES?
Assuming the deceased person holds money in a bank account, the bank will generally release funds in payment of the funeral expenses. They will generally require an invoice and a copy of the Death Certificate. A Grant of Probate is not usually required for this purpose. Our legal staff will be happy to help you arrange this.
WHAT IF THE WILL IS NOT HELD BY GORDON GARLING MOFFITT?
We can simply write to the lawyers holding the Will requesting that it be sent to our offices to enable administration of the estate.