Deceased Estates, Probate & Administration - NSW
Acting as an Executor can be a confusing and stressful experience. We've been helping Executors manage their duties since 1969 and understand that it's a very tough and emotional time for everyone involved. Which is why do our best to make the entire process as stress-free and smooth as possible.
Set out below are some helpful answers to some of the most often commonly asked questions by Executors:
An Executor is the "legal personal representative" of the person who has died. This person is legally able to act on behalf of the person who has died, to carry out that person's wishes as stated in their Will. The job of Executor involves important duties and obligations.
The most important duties are:
(a) to arrange for the burial or cremation of the body;
If you are a beneficiary under the Will as well as an Executor, the bequest to you will be presumed to be payment to you. However, there could be something in the Will or special circumstances to overturn that presumption.
If you are not a beneficiary under the Will then you are entitled to apply to the Supreme Court for a commission for the work undertaken by you as Executor.
You can renounce Executorship by signing a "renunciation", if you do not wish to be an Executor, even if you had earlier agreed to be one.
The Lawyer acting on behalf of the Estate will file the renunciation with the application for Probate at the Supreme Court.
If you are not in possession of the original Will, you should produce to the holder of the Will, evidence of your identity and evidence of the death. You will be able to prove the death by producing the original Death Certificate or, in some circumstances, by producing the funeral notice.
If you are not sure of the whereabouts of the Will, contact a lawyer who will be able to make searches and enquiries on your behalf. It is also wise to make a thorough search of the deceased person's personal papers and effects.
Once you are in possession of the Will, you should consult a Lawyer who will advise you what steps will be necessary to carry out the deceased person's wishes.
By now, you should have received the medical practitioner's certificate of death. However, in most cases, it will be necessary for the Executor or Administrator to obtain an original Death Certificate from the Registry of Births, Deaths and Marriages. This document is the official evidence that the death has occurred and it is required in the legal administration of the estate.
Your funeral director will be able to arrange for the certificate to be issued by the Registry. You should receive this document approximately two weeks after the funeral.
Your funeral director may require from you certain information regarding the deceased person's family history, occupation and other personal details. This information is required by the Registry of Births, Deaths and Marriages. They collect the information for, amongst other reasons, statistical purposes.
It is the Executor's responsibility to arrange for the burial or cremation of the body. The deceased person may have left some direction or some instructions as to the disposal of his or her body. You would usually find the deceased person's wishes for the disposal of their body in their Will.
As an Executor, you are not legally bound to carry out these instructions to the letter. You can expend a reasonable amount, having regard to the value of the estate and the deceased person's circumstances in life, on the funeral and monumental masonry.
The Human Tissue Act, 1983 states that where a person wishes to have tissue from his or her body removed for transplantation purposes following his or her death those wishes can be acted upon. You should check the deceased person's drivers licence to see if he or she has consented to organ or tissue donation.
Assets which were held in the deceased person's sole name will be "frozen" after the death. Generally, banks and building societies will only allow enough money to be released to the Executor for payment of the funeral expenses before probate has been granted.
Generally, assets which are owned by the deceased person jointly with a living person will not be frozen. It will normally be possible for the joint owner to operate jointly held bank and building society accounts.
They will also be able to transfer real estate where it was held by them with the deceased person in a "joint tenancy" as opposed to a "tenancy in common". You should consult a Lawyer to assist you in transferring jointly owned assets.
Superannuation is not usually treated in the same way as the other assets of the deceased person. You should ask your lawyer to contact the superannuation fund to find out what their requirements are for releasing the funds to the nominated beneficiary.
To whom do I have to give notice of the death?
Banks and building societies have varying rules which allow access to the deceased's funds without a grant of Probate if the estate is very small, approximately $10,000 to $15,000. Enquiry should be made of the body concerned to ascertain at what level it will insist on a grant of Probate before the executor can deal with the funds. Where the estate is small, that is less than $15,000, no court fees are payable if an application for Probate is necessary.
The word "probate" means proving. Amongst other things, it involves proving that the Will in the Executor's possession is the last Will of the deceased person.
Probate is an order of the Supreme Court and it officially grants to the Executor the power to administer the estate. It will depend upon the nature of the deceased person's assets as to whether it will be necessary for you to obtain probate.
For example, where the deceased person owned real estate or other valuable assets, it will generally be necessary to obtain probate.
Once Probate has been granted, the Executor must collect the deceased's assets and arrange to pay all debts or taxes including income tax of the deceased. The possible liability for Capital Gains Tax makes it crucial to find out the date and cost of acquisition of the deceased's assets which could be subject to Capital Gains Tax. Funeral expenses must be paid first, then executors expenses and finally the other debts of the deceased.
After payment of debts, the assets are either distributed according to the terms in the Will or they are sold with the proceeds being divided among the beneficiaries.
As executor you might have to contact financial institutions and companies holding the deceased's investments in order to realise those assets, and become involved in selling various pieces of the deceased's belongings such as jewellery, furniture, a caravan or car.
You may have to open a bank account in the name of the estate, into which all funds owed to the estate should be deposited and from which debtors must be paid.
An Executor is liable to lodge taxation returns on behalf of the deceased person. You should consult your accountant to help you with the deceased person's taxation affairs.
Following the identification of all assets, and, where necessary, the sale of assets, after all debts have been paid, the remainder of the estate can be distributed to the beneficiaries. This occurs after the executor has published a notice in the newspaper requiring anybody with a claim against the estate to provide particulars of the claim within one month.
An estate statement of account and a distribution report must be prepared by the executor to be given to the beneficiaries when they receive their share of the estate. This shows what the assets were, how much money resulted from any sale of assets they raised and what expenses and debts were paid from the proceeds.
When an executor is applying to the Supreme Court for commission for his/her administration, detailed accounts have to be filed with the Probate Registry. All receipts and payments by the executor must be properly approved by the court.
When a person dies without a Will they are said to have died intestate. The Government has put in place certain rules which provide for the distribution of a deceased person's assets in these circumstances. Generally speaking, these rules state that a deceased person's next-of-kin will inherit the estate.
In cases of intestacy, an "administrator" is appointed by the Supreme Court as the deceased person's legal personal representative. Usually the deceased person's next-of-kin is the most likely person to be appointed as the administrator.
Administering estates where the deceased person didn't leave a Will can be far more complicated than where there is a Will. The next-of-kin should consult a Lawyer for professional advice about what to do.
We trust that this information has helped to give you an understanding of the responsibilities of an Executor looking after a deceased person's affairs.