Estate Complete

The factors that decide whether an estate goes through Probate are usually the value of the estate and also, whether there are assets such as property or land. In some circumstances though, Probate might not be required even if there are assets such as a property. Some of these circumstances are:

1. If the only assets are in cash and belongings such as jewellery or a car.

2. The property is owned as joint tenants. If the property is held as joint tenants, the property automatically belongs to the surviving joint owner.

3. All of the other assets were owned jointly, usually with a spouse or civil partner, and there were joint bank accounts. The joint owner has the legal right to these funds without Probate.

If the estate is of low value, financial institutions each set their limits for Probate. You can ask the bank or building society where the account is held about their particular limits.

If the estate does not have enough assets to pay off its debts – it is insolvent. Please note, there can be some legal issues when dealing with an insolvent estate that could expose you to personal liability for any mistakes made.

You can see there are quite a few situations where Probate is not required. Therefore if there is an Executor named in the Will and no Probate is needed, the Executor can continue with administering the estate, apart from if it is insolvent, where it is advisable to take advice from us.

Bank requirements

Most banks have a policy in place that they will not release funds without sighting a grant of Probate. Some banks will release funds in cases where the amount held in the account is small, and generally, this is around $5,000. Where the amount is more significant than $5,000, the bank would consider releasing the funds, but this can take time. In most cases, the bank will want the following:

1.  detailed list of the estate’s assets and liabilities

2.  the full details of all executors and beneficiaries

3. an indemnity from a person, in which that person will indemnify the bank in the event there is a claim

4. the reasons why no application for a grant is being sought

Company Investments

Where the deceased held investments with several companies, even though they may be of comparatively small value, the usual procedure is to obtain a grant as the formalities required by the companies instead of production of a grant usually outweigh the benefit of administering the estate without a grant.

As a general rule major public companies permit dealings without sighting a grant of Probate provided the value of the shareholding in the company as at the date of death does not exceed $10,000 or in some cases $15,000.

Parties holding assets of a deceased whether banks, building societies or the like, are far more likely to release funds to an executor appointed by the deceased’s Will than to an entitled administrator. It is not usual for an intestate’s estate of any size to be administered without a grant.

Land

A deceased’s interest in land (freehold/Crown leasehold) can usually be dealt with without the necessity for a grant. If the deceased died intestate, provided the gross estate does not exceed $150,000, no grant will be required to register a transmission by death in favour of the person entitled to a grant of representation. The Registrar of Titles may insist on a grant being obtained. As a matter of practice, the Registrar will not ask on a grant unless particular difficulties exist in respect of the Will or the right to a grant on an intestacy.

General Cost of Obtaining Probate in Queensland are as follows:

Disbursements

1. Supreme Court Filing fees $722.90

2. Queensland Law Reporter $161..70

Other Legal Firms Fees and Public Trustee

Queensland practitioners are not covered by any scale for non-contentious probate matters but are governed generally by the Legal Profession Act 2007 (Qld) and the Legal Profession Regulation 2007 (Qld). Usually, most legal firms charge between $2,500 – $3,000 for a standard Grant of Probate service. The Public Trustee charges professional fees of around $1,872.59 for a standard Grant of Probate. When you compare the same service which we offer for a standard Grant of Probate, you will save approximately 30% in professional fees using our firm.

It’s easy for us to assume that our property and possessions will automatically go to loved ones when we die; however, this is sadly not always the case. Without a valid Will, the strict inheritance laws apply.

The only way to make it clear who should inherit your property and possessions after you pass away is by making a Will.

When an adult person with assets, such as property, money and possessions, dies without a valid Will, they are said to have died Intestate.

In these circumstances, before it can be determined who the beneficiaries are, the first step is to establish who should be administering the estate.

When identifying estate administrators and beneficiaries, excellent care and diligence is required to avoid any mistakes being made, because an Estate Administrator can be held personally financially liable for any loss resulting from a breach of their duty.

This is where our Probate and Estate Administration expertise has been invaluable for thousands of our clients. We offer a sympathetic ear when bereaved people need it most.

The Application for Probate of a Will is the process of proving and registering in the Supreme Court the last Will of a deceased person.

It is usually the executor of the Will of a deceased person who will make an application for Probate of a Will and who administers the estate and handles the disposal of their assets and debts. To get authority to do this, they usually need to obtain a legal document called a ‘Grant of Probate’.

To protect the interests of those who hold the deceased’s assets (for example banks, insurance, shares) the executor may be asked to prove they are authorised to administer the Will before the assets can be released. The Grant of Probate is the proof required.

To make an application for Probate of a Will, the executor named in the Will must apply to the Probate Office of the Supreme Court. If their request for Probate of a Will is approved, the executor is given a Grant of Probate to confirm the testator of the Will has died, the Will is authentic, and the executor is who they say they are.

An executor can be an individual or a trustee company like the Public Trustee. Once a Grant of Probate has been given, management of the deceased’s assets can safely be transferred to the executor.

All Grants of Probate are stored, along with the corresponding Will, at the Supreme Court. These are public documents. If a deceased person does not have a Will, validation of their estate and benefactors is not done with a Grant of Probate, but with a similar document known as ‘letters of administration’.

Every state and territory of Australia has different requirements for executors who wish to apply for a Grant of Probate. Typically the first step is a requirement that the executor publish a notice of his/her intention to apply for a Grant of probate. For example, in Queensland, this notice must be published in the Queensland Law Reports at least 14 days before applying with the court. The notice must include the following matters:

1. the name of the deceased and any alias

2. the deceased’s last address

3. the date of the Will and codicil(s)

4. the full name of each executor

5. the contact details of the solicitor

What documents need to be filed in the Supreme Court?

Again, the documents which need to be filed vary in each Australian state and territory. However, in NSW and QLD, you will need at least the following to be filed:

1. application for probate

2. original will (and codicil(s))

3. affidavit supporting the application for probate

4. original death certificate

What do I do if I can’t find the Will or there isn’t one?

If you cannot find a Will in any of the paperwork at the property, you should speak to other family members or loved ones to see if it was left with them.

You could also contact any local Solicitors that were used by the person who died to see if they have any records of a Will being made or have the Will.

You can also check with the Public Trustee to see if a Will has been registered there. If you find a Will, it will need to be sent to the Executor/s.

Probate is a term used when talking about applying to the Supreme Court for the right to deal with the estate of someone who has died.

However, you’ll find that different terms are used, depending on if the deceased person left a Will.

The process has been developed so that executors apply to the Supreme Court to prove a deceased person’s Will and that the author of the Will has died, the Will is authentic, and the executor is who they say they are. For all Probate applications, the executor appointed by the Will is the person who administers the deceased estate and handles the disposal of their assets and debts. If your application to the Supreme Court is accepted, a document known as a ‘Grant of Probate’ or simply a ‘Grant’ is issued to you. The document confirms your right to administer the deceased’s estate.

Often, banks and insurers are asked to prove they are authorised to administer the Will before the assets can be released. The Grant of Probate is the proof required.

All Grants of Probate are stored, along with the corresponding Will and Death Certificate, at the Supreme Court. These are public documents.

Who can carry out probate?

If there is no executor named, or there is no Will, someone must become the administrator of the estate – this will be someone who would benefit from the Will, or a blood relative if no Will exists.

The administrator mostly performs the same tasks that an executor would, although they often have no Will to act upon.

If the deceased didn’t leave a Will, or there is only a copy of Will, a relative of the deceased can apply to the Supreme Court to deal with the estate. In this case, they apply for a ‘Grant of Letters of Administration’. If the Grant is given, they are known as ‘administrators’ of the estate. Like the Grant of Probate, the GrantGrant of letters of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets.

After someone dies, specific individuals have a legal right to make a claim in the Estate if they feel that they haven’t been adequately provided for in the deceased’s Will. These individuals include the deceased’s spouse and their children, amongst others.

Are Claims on an Estate Automatically Agreed?

No, claims are not automatically granted once an eligible individual has made them. Whether or not the claim will be granted will depend entirely on the circumstances of the case.

The Court will consider several factors when considering a claim on an Estate. First, they will consider whether the Will makes ‘reasonable financial provision’ for the individual. If the Court decides that the answer to this is ‘no’ then they will determine whether they should intervene to award this provision from the Estate. If they think that this is the right thing to do, the Court must then decide what type and value of arrangement it is appropriate to award.

When Can a Claim Be Made on an Estate?

There is a strict time limit within which an eligible individual can make a claim on the Estate. This is six months from the date that the Grant of Probate was issued. For this reason, Executors are advised to wait until this period has lapsed before distributing any of the Estate to the beneficiaries.

The Court does have the authority to extend this deadline in some cases. To get an extension, a formal application will need to be made to the Court, seeking their permission. The Court will decide whether or not to grant this extension. They will consider the merits of the claim, the reason why the claim is being made outside of the 6-month timeframe and what has happened during and since this time. They will also look at whether negotiations began within the time limit and to what extent the Estate has already been distributed.

So, as you can see, claiming outside of the six-month timeframe is likely to be challenging, so it’s essential to lodge any potential claim as early as possible. If the deadline is missed, then the claimant may no longer be able to make a claim.

A Grant of Probate is sometimes required to deal with assets held outside of Australia.

With more and more of us working abroad, opening foreign bank accounts and investing in holiday homes, the need to deal with foreign assets after someone dies is increasing. The process when foreign assets are involved can vary depending on the asset holders and the laws of the countries with which the deceased was connected.

If someone owned foreign assets at the time of their death, as well as assets in Australia, this is referred to as a cross-border Estate and it is likely to make dealing with their Estate more complex. As a result, when foreign assets are involved, it will take longer to complete the Probate process.

When administering a cross-border Estate, questions can arise around which country’s law should apply to each aspect of the Estate. These include the inheritance of assets, the validity of the Will (if there is one), the way we treat the Australian and foreign Estate for tax purposes, and how you dispose of those assets.

Establishing which Country’s Law Applies

The deceased’s domicile (i.e. the country of their permanent home, where they intended to remain) must be confirmed. This can affect the tax position of the Estate as well as which law will apply, and this may determine who inherits the Estate. It may also be necessary to confirm other factors, such as the deceased’s nationality or residence, and it’s important to note that these are not always the same as their domicile.

If the deceased left a valid Will, it is sensible to review this to establish if it deals with the assets held overseas along with the deceased’s assets in Australia.

In Australia, the approach to establishing which country’s laws should apply, is that immovable assets, such as land and property, are dealt with according to the law of the place where the land is physically located. Movable assets, such as bank accounts, are handled by the law of the place where the deceased was domiciled when they died.

When dealing with foreign assets, there is no universal or standard approach to dealing with them as it’s mostly up to the individual institution and local practices.

Once it has been established that a Grant of Probate is required, you must seek legal advice both in this country and the country in which the asset is held. This is to ensure that all relevant laws are complied with and any tax liability in either country can be considered.

In some cases, it may also be necessary to obtain a Grant of Probate (or equivalent) in the country where the asset is located. In this instance, it’s a good idea to instruct a qualified Agent in that country to obtain this document.

Our Probate lawyers are very experienced in dealing with cross-border estates and can provide advice and guidance throughout the process. 

The decision to apply for a Grant is usually made after consideration of the assets of the estate which must be dealt with. In many estates the question asked is: can the assets of the estate be collected by the executor or entitled administrator or transferred to appropriate beneficiaries without a grant? If so, then it may be relevant to seek to avoid the expense and time involved in obtaining one. It is for this reason that in correspondence requesting to verify assets of the estate the party often will be asked whether sighting a Grant will be required before allowing the asset concerned to be dealt with.

Strictly, any party holding assets of the deceased, no matter what their value, may insist on sighting a Grant before allowing the asset to be dealt with.

However, even when it is possible to deal with all the assets of the estate without obtaining a Grant, it may nonetheless be prudent or appropriate to get one.

First, obtaining a Grant virtually always will afford personal representative protection. Relevant factors in deciding the importance or otherwise of security include the size of the estate. The larger the estate, the higher the risk; the deceased died testate or intestate, and the Will proposed to be acted upon is the deceased’s last will and is free from difficulties.

Secondly, in most instances, the personal representative or entitled personal representative will be required to provide an indemnity to the bank, building society or company which agrees to dispense with the production of a Grant.

It’s easy for us to assume that our property and possessions will automatically go to loved ones when we die; however, this is sadly not always the case. Without a valid Will, the strict inheritance laws apply.

The only way to make it clear who should inherit your property and possessions after you pass away is by making a Will.

When an adult person with assets, such as property, money and possessions, dies without a valid Will, they are said to have died Intestate.

In these circumstances, before it can be determined who the beneficiaries are, the first step is to establish who should be administering the estate.

When identifying estate administrators and beneficiaries, excellent care and diligence is required to avoid any mistakes being made, because an Estate Administrator can be held personally financially liable for any loss resulting from a breach of their duty.

This is where our Probate and Estate Administration expertise has been invaluable for thousands of our customers. We offer a sympathetic ear when bereaved people need it most.

What do I do if I can’t find the Will or there isn’t one?

If you cannot find a Will in any of the paperwork at the property, you should speak to other family members or loved ones to see if it was left with them.

You could also contact any local Solicitors that were used by the person who died to see if they have any records of a Will being made or have the Will.

You can also check with the Public Trustee to see if a Will has been registered there. If you find a Will, it will need to be sent to the Executor/s.

Where the deceased died intestate

The person entitled to appointment as administrator under a grant of letters of administration is determined by the Supreme Court and Uniform Procedure Rules (Rules).

If the Intestate were survived by more than one spouse and both applied, the registry would refer the competing applications to the court. Generally, if there is more than one surviving spouse, the court may make a grant to either of them or a person lower in the order of priority. However, as with administrators with the Will, the court may appoint any person it thinks fit.

As with an application for a grant of letters of administration with the Will, the applicant need not establish priority for a person equal to or lower than the applicant in the order of preference but the existence or nonexistence and beneficial interest of any de facto spouse or a person claiming to be a de facto spouse must be sworn.

Here is a list of rough definitions for some of the unfamiliar terms you may come across during the probate process.

Administrator

The person who is responsible for dealing with the estate when someone dies without a Will, or where the appointed Executors are unwilling or unable to fulfil the role.

Asset

Any item of property, belongings or money owed by the deceased.

Beneficiary

A person who benefits from a Will i.e. receives a gift.

Bequeath

The act of leaving a bequest to someone. The equivalent of ‘give’ concerning a gift.

Bequest

Any gift left in a Will. A bequest can also be referred to as a legacy.

Chattel

Any item which is not money, i.e. furniture, clothing, jewellery, cars.

Codicil

A document used to make an amendment or addition to a Will.

Death certificate

A certificate, signed by the local registrar, giving the details of someone’s death. It is technically a ‘certified’ copy of the entry in the death register and can be used as proof that someone has died.

Debts

Any monetary amounts that are owed by the deceased or outstanding.

Discretionary Trust

A trust (See trusts) where the trustees have full discretion over which beneficiaries receive what from the trust fund.

Estate

The money, property and all possessions owned by the deceased person.

Estate accounts

A record of all of the financial transactions from the date of death to the time when the final payments are made to the beneficiaries. This includes values of all of the assets which made up the estate and all of the payments made using those assets.

Executor

The person appointed by a Will or codicil to deal with the estate. There may be more than one executor but no more than four. If there are more than four in the Will, only four will be named on the grant of probate.

General legacy

A gift of money or shares, made from the estate. This is different from a specific legacy in that no particular assets are specified or set aside for the purpose.

For example, ‘I give $100 to my nephew John Elliott’ is a general legacy; ‘I give my gold engagement ring to my nephew John Elliott’ is a specific legacy.

Letters of Administration

The document issued by the Probate Registry to appoint the person who will deal with the estate if there is no Will.

Grant of Probate

The document issued by the Probate Registry to certify the executor of the Will as the person who has the right to administer the estate. The grant is used as proof of that right.

Grant of Representation

A court order which authorises a person to deal with the assets of the deceased. This is a generic term which includes:

a Grant of Probate

a Grant of Letters of Administration

a Grant of Letters of Administration with Will Annexed

Guardian

A person appointed to have ‘parental responsibility’ over a child. A guardian may be appointed where the deceased was the last surviving person who had parental responsibility.

Insolvent estate

An estate where the total assets are smaller than the total liabilities (including debts, funeral expenses, etc.). I.e., there is more money to pay out than there is money within the estate.

Intestate/ Intestacy

This describes the situation where a person dies without a valid Will. A person who writes a Will is called the ‘testator’; if a person dies without a Will, they are described as having ‘died intestate’.

Interest/beneficial interest

A right to, or over, property. This is different from where a person is owed money, even where that debt is only repayable when something is sold.

For instance, a parent who has paid a part of the purchase price of a property for their child and expects a percentage of the proceeds when the property is sold as an ‘interest’ or a ‘beneficial interest’ in the house.

Someone who merely expects the money back, even with interest, is more likely to have given a loan than have an interest in the house.

Legacy

A gift within a Will (otherwise known as a bequest). A legacy is often used to refer to a gift of money.

Legatee

A beneficiary who receives a legacy.

Personal representatives

A generic term for both Executors and Administrators.

Residuary Beneficiary

A person, or there can be a group of residuary beneficiaries, who are entitled to the whole of the residuary estate (see below).

Residuary estate 

Whatever is left of the estate after the debts, liabilities and expenses have been taken away, and all gifts have been made.

Specific legacy, gift or bequest

A gift which is specified in terms of which one the beneficiary will receive, i.e. if a person owns more than one car, a specific legacy can be left which states which car goes to whom.

Substitute beneficiary

A person who receives a gift only when the first person named in the Will is not alive to receive it.

Survivorship

The situation that arises where one person outlives another. The word can be used to describe a clause ‘a survivorship clause’ which specifies what happens when someone dies before the deceased.

Testator/ testatrix

The person who has made the Will – the deceased.

Trust

A trust is an arrangement where legal ownership of an item or money is divided from the person who is entitled to the benefit or value of the asset.

The trustees legally own something, and the benefit (the income, the right to use it or the sale proceeds if sold) is owned by the beneficiaries.

A trust is an entity similar to a company or partnership. As a company, the people in charge day to day – the trustees – are not necessarily the same as the people entitled to receive the income or the sale proceeds if sold. These would be the shareholders or beneficiaries (however, they may be the same people).

Like a traditional partnership, a trust is not incorporated into a separate entity. Instead, roles (and the rights and duties which come with that role) are handed out within a deed (which may be amended over time).

For example, if a property is held on trust for children, the trustees will be the people registered at the Land Registry, but the children will be the beneficiaries. The trustees can sell the property. However, as the children are entitled to the beneficial interest (see interest/beneficial interest), the trustees should only do so when it is in the best interests of the children and only following any rules contained within the trust deed.

Perhaps the most common trust is where two people own a house. For practical reasons, a trust is automatically created by law separating the names at the Land Registry (the trustees) from the people entitled to the proceeds of any sale (the beneficiaries). In most cases, these will be the same people.

Will

A legal document that stipulates how someone’s property and belongings should be divided when they die. Traditionally, a Will was referred to a person’s ‘last Will and testament’, but those words are somewhat superfluous.

There are several reasons an Executor may not wish to be involved in Probate. To free themselves of this responsibility, they can sign a document called a Renunciation.

Who Is Usually Appointed as an Executor?

When someone makes a Will, they can name the person (or people) that they would like to be responsible for winding up their affairs and fulfilling the terms of their Will. This person is called the Executor of their Estate. The role of Executor is an important one, so people usually appoint trusted relatives or friends as their Executors. Sometimes though, people appoint professional Executors, such as Solicitors, accountants or banks. This can be because they have nobody else to appoint or because they have complicated affairs, and there is a need to have experts involved from the beginning.

Family feuds are another common reason for appointing professional Executors. If there are likely to be arguments over the Will and who gets what, it can be helpful to have an independent professional acting as Executor so that no one in the family can take over and have their way. Thankfully, those situations are quite rare.

The role of Executor can be demanding and involves the Executor taking on a certain amount of risk. They will need to deal with any properties, money, possessions and debts of the person who has passed away, and ensure all the beneficiaries named in the Will receive what they are entitled.

Doesn’t Want to Act?

So what happens if Executors do not want to act? There are several reasons an Executor might not wish to be involved in dealing with an Estate – they may be elderly, unwell or simply not have the time. If the Executor is also named as a beneficiary, renouncing does not affect their entitlement, only their appointment as Executor.

Another option available to an Executor who does not want to act is having power reserved to them. This means they are stepping aside but can apply to become involved in the estate administration at a later date. This is different to renunciation, which is permanent.

What Happens if the Family Wants a Professional Executor to Step Down?

What happens if there is a professional Executor in the Will and the family does not want them to act? Maybe they want to deal with the Estate themselves, or they want to use a firm who charges a fixed fee. Just because they are named in the Will as an Executor doesn’t mean they have to deal with the Estate. In most cases, if you speak to the professional Executor, or the firm, they work for, and explain that you do not wish for them to act, they will usually agree. They may charge a fee to produce and sign the renunciation. Sometimes, professional Executors will refuse to renounce. It is true that, legally, you can’t ‘force’ an Executor to sign a renunciation. However, in certain circumstances, you might be able to get them removed by the Court.

If one of two or more executors has died, the surviving Executor or executors are entitled to act. Details of the death of the Executor should be obtained as his or her certificate of death will need to be exhibited to an affidavit by the surviving Executor or executors in any application for a grant of Probate.

Renunciation by one of the executors

If an appointed executor wishes to relinquish his right and title to Probate and execution of the will, she or he may formally renounce the executorship. When an application for a grant of representation is made, the renunciation should be filed as an exhibit to the affidavit of the applicant. Although inter-meddling in the Estate’s administration no longer precludes renunciation, it is generally undesirable for a person intending to renounce, to take any part in the Estate’s administration.

Reserving power for one of the executors to prove

If one of two or more executors is unable or unwilling to take an active part in the Estate’s administration but is reluctant to renounce his right to be an executor, power may be reserved for him to obtain Probate at some future time. The application is made by the other Executor or executors.

Add the value of all of the financial assets together and then deduct any liabilities of the estate. This may be items such as final utility bills, mortgages, loans and any other debts owed.

No, you do not have to act as an Executor. You have a couple of options. Your first option is to give up all rights to act as Executor as long as you have taken no steps concerning the estate administration. Your other option, if there are other Executors named in the Will, is to choose to have ‘power reserved’. This allows the other Executors to act, but you can apply to ‘join in’ the Probate process later on if you want to or need to.

If you instruct us to complete Probate for you, you can remain as Executor, and we can discuss your options with us.

Many tasks during Probate can only be carried out by the named Executor. If the Executor of an Estate doesn’t want to act (maybe they don’t have time, or they are unwell, for example) then there is a specific legal process through which they can step down from the role, and there are particular individuals who can take over.

It’s not possible for anyone to step into the shoes of the Executor on an informal basis, but there are some tasks that can be carried out by someone other than the named Executor.

The Role of Executor Explained

When someone dies, their affairs will need to be wound up. This can include applying for a Grant of Probate, selling or transferring everything they owned, paying off their outstanding debts and the costs of dealing with their Estate, valuing their Estate, paying any tax that’s due and distributing what’s left to the beneficiaries of the Estate. This process is commonly referred to as Probate, and the person who is responsible for carrying out this work is usually called the Executor (if there is a Will) or the Administrator (if there isn’t).

These two roles are mostly the same, other than the way in which they are appointed. To keep things simple, we’ll refer to Executors in this article.

The Executor is the person (or people) that the deceased has chosen to administer their Estate after they die, and they will be named in the deceased’s Will. This is often a friend or relative that was close to the deceased, but it could also be a professional such as a bank or a solicitor.

Why might an Executor not want to act?

There are a number of reasons why an Executor may not want to act. It could be that they have become unwell and are not fit to take on the role, it may be that they don’t have the time to commit to it, or it may be that they do not want to take on a role with such significant responsibilities.

As the named Executor is commonly someone who was close to the deceased, then another reason why they may not want to act may simply be because they need time and space to grieve. Our Probate Advisors are often contacted by the relatives of Executors who are in precisely this situation. We have received many phone calls from the spouse of someone who has recently lost a parent and has been named as the Executor in their Will. Often the spouse wants to take on some of the burden for their bereaved husband or wife and carry out the Probate work on their behalf, allowing them the time they need to grieve.

How can I take over from an Executor?

If the Will names more than one Executor, and you are one of those named, then the process is quite straightforward for the other Executor to step down. In this situation, the Executor who doesn’t want to act has two options. They can either choose to renounce as Executor, or they can have Power Reserved to them when you apply for a Grant of Probate.

If the Will names more than one Executor and you are not one of those named, then you will not have automatic authority to step in and take over. Instead, this responsibility will fall to the other Executors named in the Will.

If none of the named Executors are able or willing to act, then one of the primary beneficiaries of the Will can typically apply for the Grant instead.

Can I help in any way if I’m Not an Executor?

The primary duties of the Executor are carried out by the person or people that have been named on the Grant of Probate. If you have not been named on this document, then you will not usually be able to carry out tasks such as closing down the deceased’s bank accounts or selling their assets.

However, there are a number of other practical tasks that you will be able to help with following the death. These include contacting companies (such as utilities) to notify them of the death, helping with the funeral arrangements, helping to secure and clear the property, and informing friends and relatives of the funeral details.

If you have been asked to be an Executor, you will be named as such in the deceased’s Will. Where there is no Will, the position of Administrator is determined by a strict legal order of priority. The Rules of Intestacy also set out how the estate will be distributed.

Being named as Executor in a Will can bring with it complicated, stressful and time-consuming duties which often take up to a year to complete.

It is crucial to get everything right because the Executor is legally responsible for administering the estate in accordance with both the terms of the Will and the law. An Executor is responsible for everything they do or fail to do, in respect of the estate.

Acting as the Executor of a Will can be a very daunting prospect because the role carries with it a considerable amount of legal, tax and administrative responsibilities. An Executor’s duties last for the duration of the administration of the estate and can also carry on into any ongoing Trust.

Executor Duties include:

Going to Court and applying for a Grant, which is the confirmation of legal authority to administer the estate. If this is done by the named Executor in the Will. If there is no valid Will, this is called Letters of Administration.

1. Identifying and dealing with any valid claims against the estate.

2. Completing the relevant Tax returns and paying any outstanding tax owed.

3. Notifying and corresponding with all relevant organisations to cash or transfer the deceased’s assets and pay the debts and liabilities of the estate.

4. Searching for unclaimed or missing assets.

5. Preparing and distributing estate accounts to relevant parties.

6. Correctly distributing the residue of the estate to the beneficiaries.

Probate is the process of proving that a Will is valid and confirming the Executor’s authority to administer the estate of a person who has died. Although Probate relates to an Estate where a Will was made, even if there was no Will, a similar process will still be followed, and this is often referred to as Probate as well.

Am I legally responsible if things go wrong as Executor?

When you act as an Executor, you are expected to act reasonably and act in the best interests of the estate and its beneficiaries. This could involve getting a fair price for any assets being sold, ensuring that relevant insurance is in place to protect any property assets and to ensure that all tax owed is paid before the distribution of the estate.

It is advisable to advertise the death in line with specific statutory procedure. This allows anyone who is owed any money by the estate to be paid in full. If you don’t do this, you could be liable if someone claims against the estate after it has been distributed.

Finally, someone may dispute the Will. This could be to question whether the Will is valid, produce a newer Will or make further financial claims from the estate. You should always take independent legal advice on your position if this happens.

Funeral Arrangements

Although it is the Executor’s responsibility, in most instances, close family or friends attend to the funeral arrangements without reference to the Executor. It is often some days or even weeks after the funeral that the will is located and the Executor identified. However, it is desirable that the will be found and read as soon as possible after death as it may express wishes for funeral arrangements with which most executors and the family of the deceased would wish to comply.

Disputes rarely arise concerning funeral arrangements, but always the decision of the Executor will be paramount. When the deceased has left directions as to his or her funeral arrangements, the Executor would generally give effect to those wishes although they are not legally binding on him or her.

Where there is a dispute between an executor and a de facto spouse over possession of the body for funeral purposes, a de facto spouse has no right to possession where the Executor is willing to arrange the funeral.

Where the deceased died intestate, and there is a dispute amongst family members over disposal of the body, the Court will favour the person/s entitled to letters of administration as the person/s having the final say. If no one has applied for letters of administration, those representing the close relatives of the deceased have a duty to bury the deceased, and thus children of a deceased person take precedence over a de facto spouse in deciding on the disposal of the body. In those rare circumstances where there is a dispute between those equally entitled to a grant, such as the parents of an intestate, the Court will generally resolve the matter on the basis of practical considerations, for example, by favouring the means of disposal involving the least distance of movement of the body.

Where a family member is acting as executor, commission is seldom claimed. In circumstances where the estate is large, and the duties of the executor are likely to be onerous, clients sometimes consider providing for a legacy instead of commission. Some wills are drafted with details of the commission to be allowed to the executors. If such provisions were being considered, careful attention to the drafting of them would be necessary. If the legacy is not regarded as adequate by the appointed executor, he or she may renounce the executorship or renounce the benefit and apply for commission as appropriate.

Section 68, Succession Act provides for the court to authorise the payment of remuneration or commission to a personal representative for his or her services as personal representative.

The award of commission is in the discretion of the court. Only in exceptional circumstances, such as where the personal representative has committed a breach of trust, is an application likely to be refused. Australian and New Zealand courts appear on the whole to have been reluctant to grant commission where the personal representative’s behaviour has been irregular.

Agreement by beneficiaries to pay commission

Instead of an application to the court for the award of commission, the amount may be settled by private agreement between the personal representative/trustee and the interested beneficiaries, and in practice, this is the usual basis upon which commission is paid. Commission payable to a personal representative in respect of the administration of a deceased’s estate is deemed to be a testamentary expense, and accordingly, the interested beneficiaries are those entitled to the residue of that part of the estate from which the testamentary costs are payable. Under most wills, the interested beneficiaries will be the residuary beneficiaries.

Payment of commission according to a private agreement is preferred because of:

1. the saving by the interested beneficiaries of the substantial costs involved in an application to the court for commission; and

2. the expectation by the court that the personal representative should endeavour to adopt the most economical procedure to finalise the estate.

The circumstance of the estate may, however, prevent settlement of the commission by private agreement as, for example, where minors or persons not yet born are interested beneficiaries.

What is the Quantum of commission likely to be awarded?

For a private executor, there is no statutory scale provided as the basis upon which commission is payable. Each case must be dealt with on its merits. It will be noted that the scale reflects the principle that easy work will be allowed less commission than difficult task, i.e. there is no ‘flat’ rate regardless of the extent of difficulty of the work.

The extent to which the above scale can be used as a current guide is difficult to state. Considering estates generally, the practice has been to award commission on corpus within the ranges of 1.50%-3% and income in the range of 3%-5%.

The Public Trustee

According to s 17, Public Trustee Act 1978, the public trustee charges a fee for the administration of a deceased estate and currently bases that price on an hourly rate disclosed on its website.

Apportionment of commission

When appropriate, the court will apportion the commission awarded in respect of periods, e.g. where an executor dies in the course of the administration, the award of commission which is made is appropriate to the period during which the deceased executor was involved in the administration. An apportionment of commission amongst the personal representatives/trustees is not generally made as commission is said to be awarded as a total sum to the executors or trustees as a body.

The Will of the deceased should be located as soon as possible after his or her death. It may provide directions regarding the testator’s funeral but more importantly it will generally identify the executor. It thereby establishes the person in whom the deceased’s estate is initially vested and by whom the various estate’s administration functions will be performed. Often the solicitor or the bankers of the testator hold the Will in safe custody.

A direction in the Will appointing a particular solicitor or firm of solicitors to act in that capacity or as the estate’s solicitor is not binding on the executor.

Where the Will is not already held in safe custody by the solicitor so instructed, arrangements must be made to obtain possession of it. A request in writing signed by the executor and directed to the party holding the Will is normally required before the will is released. Occasionally evidence of  the  death  of  the  testator  may  also  be required.

Firstly, the Executors of the Estate are named in the Will. There can be a number of Executors or only one named and they need to decide if they wish to act in their role as Executor or appoint a professional instead. If they do not appoint a professional then it may be preferable for just one of the Executors to take the lead.

As Executor, you should obtain a Death Certificate and start to arrange the funeral. Once the funeral has taken place, you should have more time to think about whether you want to get Probate for the estate yourself, or to engage someone to do this for you.

Our fixed fee Probate quotation does not include a percentage of the total value of the estate, this could save you thousands in fees.

What if there is no Will?

If there is no Will, you may have to apply to the Court for Letters of Administration to administer the estate. The estate is then distributed according to the rules of Intestacy (the term used for dying without leaving a Will).

Do all Wills go to Probate?

No, not all Wills go to Probate and in fact even if there is no Will, some estates will still need to go through the Probate process too.

Are the contents of a Will private?

Once a will is filed in the court it becomes a public document and anyone can view the will on payment of a small fee to the court.

How a Will must be executed?

A Will must be in writing and signed by the deceased (testator) or someone else, in the presence of and at the direction of the testator. The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

At least 2 of the witnesses must attest and sign the Will in the presence of the testator, but not necessarily in the presence of each other. A Will need not have an attestation clause.

A person who can not see and attest that a testator has signed a document may not act as a witness to a Will.

Obtaining a copy of the Will

When a Will is made, the Executor/s are usually told where the Will is stored. If a Solicitor or other professional has drafted the Will, then it will normally be held with them.

Executors of the Will are entitled to obtain it from the Solicitor. There is no obligation for an Executor to use the services of a particular solicitor. It’s also possible that a bank may be storing the Will.

The Executors will have to prove who they say they are by providing proof of identity and perhaps evidence of the death (by showing the death certificate) before the Will will be released.

A beneficiary of a Will is also entitled to obtain a copy of the Will upon death of the deceased.

When the Grant has been issued the Will becomes a public document and anyone can apply to the Court to get a copy of the Will.

What if the will is damaged?

If a will shows any sign of damage or tampering we would need to file a further Affidavit to explain why.

What if I am a Witness to the Will?

If a disposition of property is made by a will to a person (the interested witness) who attests the execution of the will the disposition is void to the extent it concerns the interested witness or a person claiming under the interested witness. However if at least 2 of the people who attested the execution of the will are not interested witnesses; or all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator.

Note that a disposition of property does not include a charge or direction for the payment of a debt; or appropriate remuneration to an executor, administrator, legal practitioner or other person for acting in relation to the administration of the testator’s estate.

What property can be disposed of in a Will?

A person may dispose in their Will any property to which the person is entitled at the time of their death. This applies whether or not the entitlement existed at the date of the making of the Will.

However, a person may not dispose in their Will of property of which the person is trustee at the time of the person’s death.

What should I do with items gifted in the Will to beneficiaries who have died?

Some gifts will simply lapse if the beneficiary died before they could benefit from the Will and the gift will join the ‘residue’ (anything left over after the gifts are given) of the estate. However, there are some complex rules around this so it is advisable to get expert legal advice on this point.

Execution of the will

The requirements for the due execution of the will have already been considered. It is important to ensure that the will has been executed in accordance with those requirements.

(a)        Signed.

(i)         by the signature of the testator.

(ii)        by a signature of the testator which does not accord with the name of the testator in the heading of the will.

(b)       Attestation

No attestation clause or an insufficient attestation clause has been used.

If an attestation clause has been used and its terms indicate due execution of the will, the attestation clause is accepted as prima facie evidence of due execution of the will.  If there is no attestation clause or its terms do not indicate due execution of the will, evidence will be required as to due execution. Evidence in the first instance is required of at least one of the subscribing witnesses. If it is not possible or practicable to obtain evidence from a subscribing witness or evidence from some other person present at the execution of the will, evidence must be produced of the inability to obtain such evidence. In such circumstances verification must be obtained of the handwriting of subscribing witnesses and any other circumstances which may raise a presumption in favour of the due execution of the will. In the event that none of the evidence referred to above is obtainable the court may presume due execution, if the will, on its face, appears to be properly executed.

The possibility of a beneficiary having witnessed the will

Although witnessing of the will by a beneficiary does not affect the validity of the will, the court requires affidavit evidence on the matter if the will on its face indicated such a possibility. The court is concerned to ensure that the matter has been clarified for distribution purposes since any benefit to a witnessing beneficiary is null and void except for the circumstances given in the Succession Act.

Section 18(2), Succession Act provides, inter alia, that a document that does not comply with the will execution requirements of s 10 may nonetheless be a valid will if the court is satisfied that it was intended to be or form part of the deceased person’s will.

If the will is undated, evidence must be obtained to establish the date of execution as there may be other testamentary documents of the testator. If no specific date of execution can be established, execution of the document between definite dates should be sworn to by the attesting witnesses or any other person present at the execution of the will. Where no one can depose to the actual date of execution or the approximate date of execution, evidence would need to be given of searches made for any other will left by the testator.

The general rule is that a testator’s divorce revokes a disposition to his or her former spouse (as well as an appointment of the former spouse, as executor, trustee, advisory trustee or guardian). However, s 15(3), Succession Act enables the testator to express a contrary intention in the Will. Although rarely appropriate or desired, this prospect will occasionally require discussion. Similarly, s 15A of the Act enables a registered partner to express a contrary intention to avoid revocation of gifts to, and appointments of, a former registered partner made by a Will, on the termination of the registered relationship.

Defacement of the Will

Evidence of burning, tearing, scoring or other such appearances might lead to a presumption of revocation or partial revocation of the Will by the testator and will require explanation.

Any act of destruction or partial destruction must be carried out with the intention of revoking the Will or part of it.

Evidence of an annexure to the Will

Any marking which might infer that another document may have been attached to the Will e.g. pinholes, staple holes, creasing by paper clips or fasteners, a piece torn off and traces of sealing wax or wafers must be explained. If another document were attached to the Will it must be produced or its absence accounted for as such a document may have been a codicil or later Will.

Marking of a Will may occur through inadvertence in the handling of it subsequent to the death of the testator. Care is therefore taken to ensure that no such marking of the Will occurs since whatever the circumstances, an explanatory affidavit will be required in any probate application.

Interlineations and alteration not properly attested

Unless interlineations and alterations are attested as required by law (generally by the initialling of the alteration or interlineation by the testator and the attesting witness), then such amendments are ineffective unless there is evidence that they were made prior to the execution of the Will or were validated by its re-execution or by the execution of a codicil.

Alterations of trivial importance need not be accounted for but unless properly attested they will not be admitted to probate.

Erasures and obliterations of importance

As with interlineations and alterations, it is necessary to prove that erasures and obliterations existed in the Will at the time of its execution unless they have been duly executed and attested or validated by the re-execution of the Will or by the subsequent execution of some codicil.

If it cannot be shown when the erasures and obliterations were made and the words erased or obliterated are not entirely effaced (ie. by inspection of the paper are readily ascertainable) such words will be included in the Will as proved.

Yes, because if you die with no valid Will in Australia the law will decide who gets what. If you have no living family members, all your property and possessions (including your pets) will go to the Government.

Things to Consider when Writing a Will

• How much is your Estate (everything you own) worth?

• Who do you want to inherit your property?

• What should happen to your Estate when you die?

• How can you protect yourself if your circumstances change?

• How can you protect your children or any vulnerable dependents?

When making a Will it’s important to know that some assets you have may not pass on to your beneficiaries, under the terms of your Will. This can include any jointly held property if it is not owned between the parties as Tenants in Common.

If you die without a valid Will and you have children under 18, others can make decisions about who will take care of the children and manage their finances and education.

When you set out to make a Will, it can be difficult to know where to start. To make things easier, we’ve put together some brief guidance on what you should think about including in your Will, such as funeral wishes, provisions for your children and what to leave to whom.