When someone passes away there is a legal process involved to settle their affairs. This legal process differs depending on whether the deceased had a Will or not.
If the deceased had a Will the process is more structured and clearer.
If the deceased did not have a Will the process is more complicated, and distribution of the estate can be challenging.
When there is a Will
If the deceased has a Will the executor(s) of the Will need to make an application for a Grant of Probate (Probate). Probate is an order from the Court which authorises the executor(s) to distribute the deceased's assets in accordance with the provisions of the Will.
An application for Probate is prepared and filed in court. A Probate lawyer prepares the application and files the application in court. The Court requires a range of documents to support the application which are typically:
- The Will
- The Death Certificate
- Supreme Court Originating Motion
- Details of the estate ie assets and liabilities etc
Your lawyer will check that the requirements for Probate to be granted are met before filing. If the court requires any further details, they will handle these queries as well.
After Probate is granted
Once Probate is granted the executor can start to arrange the assets for distribution in accordance with the terms of the Will. Assets can vary significantly, but the main assets are Real Property, shares, motor vehicles and cash at bank. Each asset holder will require a copy of Probate and the Death Certificate before they will release the deceased's assets to the executor.
Prior to final distribution of the estate there is a 6-month timeframe after Probate is granted where certain relatives or dependants can make a claim for part of the estate. Contesting a Will is not uncommon and if the Will has not been prepared well it may give rise to more claims.
Distribution of the estate
Once all the assets of the deceased have been realised by the executor, the estate can be distributed. Normally this process involves selling all of the assets of the deceased and distributing the sale proceeds to the beneficiaries under the Will.
In some instances, the executor may decide not to sell some assets such as Real Property but change the ownership details and divide the ownership amongst the beneficiaries proportionate to their entitlements in the Will.
When a person dies without a Will
If the deceased did not have a Will when they passed away, someone (usually the next of kin), needs to make an application for a Grant of Letters of Administration (Letters) with the Supreme Court of Victoria.
Letters is an order from the Court with authorises the Administrator to distribute the deceased's assets in accordance with the law.
The main difference between Probate and Letters is how the estate is distributed. As the deceased did not leave a Will there are no nominated beneficiaries.
The law determines how the estate is to be distributed and generally it is as follows:
- Entire estate to the spouse of the deceased (if any);
- If no spouse, then to the children of the deceased (if any);
- If no spouse or children of the deceased, then to the parents of the deceased (if any);
- If no spouse, children, or parents, then to the siblings of the deceased; and
- If none of the above are applicable, the Government may have claim to the estate.
How the estate is distributed in Letters is tricky and challenging. Therefore, it is always advisable that someone has a Will so to avoid your assets being distributed to individuals you did not choose yourself.
Executors of an Estate
Executor(s) or administrator(s) of an estate have a range of legal duties on them when administering the estate of a deceased person.
Some of the duties of an executor/administrator are to:
- Organise the deceased's funeral and burial arrangements;
- Keep proper accounts for the estate;
- Provide information to the beneficiaries of the estate;
- Ensure the estate assets are secured and invested;
- Not make any unauthorised profit; and
- Ultimately, distribute the assets of the deceased in accordance with the terms of the Will, (or the law if there is no Will).
Executor(s) and Administrator(s) can, in rare cases, face personal liability to the beneficiaries for not administering and distributing the estate in accordance with the law.
If you are the executor of a Will of someone who has recently passed away our team of experts in Wills & Estates can help you manage the estate in a stress free and straightforward manner.
Our wills and probate lawyers are experienced in assisting you in the drafting and execution of your Will. AT PCL lawyers, we are experienced in helping beneficiaries and executors throughout the process of Probate and provide clear and practical advice.
If you are unsure about whether you need a Will or what type of Will you might need we can help advise you as to what will suit your needs.
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.