Some executors prefer to instruct a solicitor to act on their behalf for a number of reasons such as if the Estate is large or complicated, or if they simply do not have the time to undertake the required tasks themselves.

Many executors do get a solicitor to act for them knowing that the legal costs can be claimed from the Estate and they will not need to pay these costs from their own pocket.

If someone does challenge the Will, the executor may be personally sued. You should obtain legal advice to best protect the Estate as well as your own personal position.

You will need a specialist solicitor who works in Will Disputes, to best protect you as the executor and Estate from a claim. Click here for more information.

Other issues may arise in addition to someone challenging the Will, and seeking “further provision”. These may complicate matters and delay the administration of the Estate. These issues can include:

• Where the deceased was domiciled in a foreign country;
• The original Will is missing or is held by a foreign body;
• The Will is unclear or ambiguous, and you need to ask the court for a ruling on what the Will means;
• Disputes arising between beneficiaries;
• The estate is complex featuring foreign assets or assets held in trust;
• The whereabouts of a beneficiary is unknown;
• Creditors claim against the estate;
• It is difficult to prove the death.

In these circumstances, it is strongly recommended that you obtain legal advice. CWPL are experts in Will disputes and estate law and can provide advice, conduct searches, arrange advertising to find beneficiaries or assets, liaise with accountants and the HMRC, prepare affidavits and appear on behalf of the executor in court.

You may also need to employ a professional firm to trace missing assets and missing beneficiaries. 

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These claims are called ‘claims for further provision’ or ‘Family Provision’ claims.

Anyone who wishes to make a Family Provision claim must do so within a certain period of time. This is usually between six (6) months or nine (9) months from the date Probate is granted, in various States, or within 12 months of the date of death in NSW.

If the executor distributes the estate within that time limit, he/she may be held personally liable if he/she has not properly taken into account the possibility of a family provision claim. The executor may be able to protect themselves by ensuring that his / her intention to apply for Probate has been advertised as stated above.

It is possible for a family provision claim to be made after the expiration of the time limit with the leave of the court. In this situation, so long as the executor was without knowledge of the potential claim, he/she will be protected from any personal liability for any distribution of the Estate after the time limit has passed.

For information on Wills, click here. 

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• Lodge the deceased’s final tax return; 
• Call in all assets and sell any assets if required or directed by the Will; Click here for more information.
• Wind up any companies or continue to run them if permitted or required in the Will; 
• Pay all liabilities including unpaid utility bills, and any capital gains tax (CGT) payable on any chargeable gains received by the deceased on the disposal of assets prior to death;
• Provide to each beneficiary their share of the Estate in accordance with the Will.

The executor should provide copies of Probate to all holders of the deceased’s asset such as banks and companies.

The costs to administer the Estate, including any legal costs of a solicitor instructed on behalf of the executor, will usually be paid from the Estate. Also, any costs personally paid for by the executor in applying for Probate or administering the Estate will usually be reimbursed from the Estate.

To protect himself / herself if someone challenges the Will, the executor should avoid any distribution of the Estate which might prejudice that claim. See below for an outline of the legal action that may be taken against an executor. If you feel that someone may challenge the Will you should immediately obtain legal advice.

There is no deadline for the executor to distribute the Estate.  However if the executor has not distributed the estate within 12 months from the date of the deceased’s death, the beneficiaries may be  able to call on the executor to do so. In any event, it should be possible to complete the administration of a simple estate within 12 months from the date of the deceased’s death.

Once the administration of the Estate is complete, the executor must prepare a full statement of account showing how the Estate was dealt with. This account must be provided to the beneficiaries.

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Anyone claiming an interest in the estate can file a caveat against the estate or notify the executor of their potential interest in the estate. If this occurs, then probate will usually not be made until the claim is resolved.

If no caveat is filed and the executor does not receive notification of any interest from a third party, then the executor can proceed to obtain Probate. There is usually a time period that the executor should allow before making the application for Probate and this may vary from State to State.

The executor can obtain probate through the local Supreme Court Registry. The original Will and the death certificate must be lodged with the required forms. There may be a lodgement fee so you should check with your local registry. If there is any doubt regarding the validity of the Will, Probate may not be issued until further evidence is provided. Examples of this may be if the Will is undated, if there are two (2) dates on the Will or if the testator signed the Will by a mark or was blind or illiterate. If the condition of the Will suggests that changes were made to the Will or an attempt was made to destroy the Will to cancel or “revoke” it, , further evidence will usually be required to be provided.  Click here for more information.

If you need assistance, contact an expert lawyer.

Additional copies of the grant can be provided to the executor for an additional fee. These copies may be required depending on the number of assets held by the deceased.

The original Will is retained by the court, and from then on, members of the public can usually inspect the Will and Probate.

If a minor error was made in the grant of Probate, such as an incorrect date, this error may be simply amended by the Supreme Court Registry without requiring the grant to be revoked and a new application made.

Sometimes Probate can be revoked after it was issued, such as where a second and later Will is found, or if the grant was provided to the wrong person.

If as executor you are threatened with an application to revoke the grant of Probate, you should obtain expert legal advice as soon as possible, as you will need to protect yourself personally from any legal action or legal costs.  Click here for more information.

The post Applying for probate appeared first on Wills & Inheritance HQ.

Assets include real property such as houses or flats, the contents of bank accounts, motor vehicles, boats, shares, furniture and household contents, jewellery, antiques and artworks.

A solicitor can help you to search for these assets, and you can usually obtain searches to land titles on line. You may need to get legal advice on how to interpret them.Click here for more information.

Each asset will need to be valued. For most assets, the value will be quite obvious, such as with the value of a bank account. However, assets such as a house, flat, furniture or jewellery may require a formal valuation, and again a solicitor can arrange this.

The post What information is needed for the executor to administer the estate? appeared first on Wills & Inheritance HQ.

On registration, a death certificate will be provided.  It is a criminal offence not to register a person’s death.

Generally it will be the executor or next of kin who makes the funeral arrangements.

The courts can resolve disagreements between the deceased’s family members as to who makes the funeral arrangements if such a dispute arises.  For instance, if a person died without a Will then the next of kin who is entitled to apply for Letters of Administration, such as a spouse or unmarried partner, will more likely be given priority over other family members such as the children of the deceased.

It is a good idea for the executor to obtain several certified copies of the death certificate as it will need to be provided to several banks, companies and organisations in order to apply for Probate and finalise the deceased’s affairs.

After receiving the death certificate, the executor should contact Centrelink or any other government department from which the deceased received a benefit, to enable the finalisation of these payments.

The distribution of any superannuation fund will fall outside the Will. The trustee of the superannuation fund will usually distribute these funds to the deceased’s nominated third party. You should obtain legal advice if you or someone else wishes to contest the decision of the trustee of the deceased’s superannuation fund.

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The original Will of the deceased must be located and examined carefully.

A Will typically appoints someone to act as executor and trustee; usually the same person acts as both.  It also names the beneficiaries who will receive a share of the estate under the Will.

Applying for Probate, dealing with the Estate, and finalising the affairs of the deceased are all the executor’s responsibility. The executor can choose to renounce his/her appointment if he/she is unable or unwilling to act.

The executor may appoint a solicitor to act on his/her behalf to obtain Probate and administer  the Estate, and has the right to do so.

This is the case even if the Will “appoints” a solicitor to act for the estate or on behalf of the executors.  This appointment is not binding on the executor and if the executor feels that another solicitor should act instead, he/she can engage an independent solicitor.  This is particularly important if the executor feels that the appointed solicitor may be biased in any way, or if he/she feels that they have been involved in inappropriate conduct.

Some issues may arise at this point in time if the deceased did not have a Will, if more than one (1) copy of the Will is found or if the Will does not comply with the requirements of a valid Will. If you have any questions similar to these, you should contact a solicitor before you proceed to apply for a grant of Probate.  Click here for more information.

For information on challenging the validity of a Will and contested probate, click here for more information

Probate may still be granted in circumstances where the Will does not meet the requirements of a valid Will, is undated, or if there is more than one copy of the Will.   However additional evidence will need to be provided in the form of affidavits to prove that the correct Will contains the genuine intention of the deceased. Probate will not be granted if this cannot be proved.  You will usually need a solicitor to help you sort these problems out.

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However, there are some exceptions to the requirement to obtain probate. Usually, these exceptions are where the value of the net estate is very small, where all of the deceased’s property is owned jointly with another person as ‘joint tenants’, or if the estate is insolvent and unable to pay its debts.

If property is owned by two or more people as “joint tenants”, then the share of the deceased will automatically and immediately pass to the others on the death of the deceased. The property will then be owned solely by the surviving owners who can deal with the property as they wish. Check details of the title. Click here for more information.

As most married people own their home as joint tenants, you should check the title as soon as you can.  If your home is held by you and the deceased as joint tenants, probate is not required for that asset, as the house will pass outside of the Will of the deceased. Your home will not be considered to be part of the Estate.

Sometimes, banks and other financial institutions are prepared to release funds from the deceased’s bank accounts before Probate is granted. This will be at the bank or financial institution’s discretion.

The procedure and requirements in order for this to occur will vary from company to company, so you should contact the deceased’s bank or other financial institution directly to discuss this process.

Typically, they may release up to $15,000 upon production of the registered death certificate. Click here for more information.

Some companies may also be prepared to transfer or pay out the value of shares belonging to the deceased without probate. The release of these funds without probate can be useful for an executor, who must pay funeral expenses and Inheritance Tax, rather than having to obtain a loan. Click here for more information.

The post Is a grant of probate necessary? appeared first on Wills & Inheritance HQ.

Once Probate is granted, the executor can legally collect money owing to the deceased, sell assets, pay debts and divide the remaining “Estate” amongst the beneficiaries.

A deceased’s Estate is all of the property that he/she owns at the time of their death.  Clothes, tools, jewellery, cash, bank accounts, a flat, or a motor vehicle can all form part of an Estate.

If a person dies without a Will they are considered to have died ‘intestate’. In this situation,  the Estate will be distributed in accordance with the rules of intestacy. “Letters of Administration” will be granted to an Administrator instead of Probate being granted to an executor.

The word “Grant” commonly applies to each grant, unless otherwise specified.

For information on the rules of intestacy, click here for more information.

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