In this series we will discuss the fundamental basics of Wills and Estate Planning, providing information and guidance that may answer questions you have throughout this process. This week we discuss Estate Administration and the procedures that must be complied with before your Estate is inherited.
Many people die believing that their assets will automatically transfer to their loved ones through their Will. In some circumstances this is simply not the case. If your Will nominated an Executor, or if there was no Will at all, then certain procedures must be complied with before your Estate is inherited. This article shall discuss who may be in charge of your Estate upon your death and what this person is obliged to do when administering your Estate.
Grant of Probate or Letters of Administration
If an adult dies leaving a valid Will, the named Executor in the Will must apply to the Supreme Court for a Grant of Probate.
If an adult dies without leaving a valid Will or if the Executor named in the Will has died or is unable or unwilling to act as Executor (commonly known as dying intestate), then it is necessary to apply to the Supreme Court for Letters of Administration instead of a Grant of Probate.
Obtaining Letters of Administration from the Court can be costly and time consuming as the person seeking the grant must locate and obtain the consent of all of the deceased’s beneficiaries to the appointment of an Administrator of the Estate. If the beneficiaries fail to agree on who is to be appointed, the Court will decide who will be the Administrator of the Estate. Circumstances may also arise to complicate the application or provide that an application for a Grant of Probate is not required.
In any case, it is strongly recommended to seek specialised legal advice as soon as you are notified of the deceased’s death.
Obligations of Administrator/Executor
It is the Executor or Administrator’s duty to administer the Estate. This includes:
- Managing the Deceased’s Funeral and associated costs.
- Preparing and filing applications for Grants of Probate, Letters of Administration and Letters of Administration with the Will Annexed (mentioned above).
- Ensure all assets are brought in and secured.
- Publishing legal notices to creditors and beneficiaries.
- Settling all debts with potential creditors.
- Distributing all remaining assets to real estate to beneficiaries or surviving joint tenants in accordance to the Will.
- This process will include, for example, managing the process of selling real estate and shares.
- Should there be legal proceedings against your will; the Executor will also be the representative Defendant to the action in Family Provision Act 1972 (WA) claims.
The Executor/Administrator must also ensure that they:
- Fulfil any additional duties. This may include for example, Insurance of all assets, managing interests of the estate, investment of unused funds.
- Comply with any tax obligations such as file tax returns to the Australian Tax Office.
How can HHG Legal Group Help?
Administering an Estate can be quite difficult. As the Executor owes a fiduciary duty to the Estate, it is important for the Executor to seek legal guidance when attending to his/her duties. We are highly qualified and able to assist you with every step of managing a deceased estate, including preparing the application for a Grant, administering the Estate, advertising for and liaising with creditors, distributing to beneficiaries and transferring assets.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
