A lawyer plays an important role in advising and providing assistance in relation to a deceased estate.
When a loved one passes away, their family usually has other things on their mind than what steps can and should be taken to deal with the deceased person’s assets.
Those assets might be held personally, in joint names or as interests in a family trust or self‑managed superannuation fund.
Is there a Will?
One of the initial questions to consider when a person passes away is whether or not they left a Will. A Will is a testamentary document which details a person’s wishes in relation to various matters including funeral arrangements, specific gifts, appointments in relation to trusts and, most importantly, how the person wishes to distribute their assets on their death.
In some cases, a deceased person may leave multiple Wills. A lawyer can assist you to determine the last validly executed Will and to interpret its terms. A lawyer can also assist to make searches for the original Will and provide advice in relation to the appointment of the executor (ie, the person nominated to administer the estate), the distribution of the estate, the valuation of assets and how an estate is to be distributed if no Will is left.
If a person dies intestate (ie, they do not leave a Will), the distribution of that person’s estate will be governed by a piece of legislation known as the Administration Act 1903 (WA). A lawyer can advise you in relation to the persons entitled to the estate under the Administration Act.
Regardless of whether or not a Will has been left, it is important to correctly identify the assets and liabilities of the deceased estate. Once the assets and liabilities have been identified, a lawyer can explain what steps will need to be taken to deal with those assets in accordance with the applicable Will or under the Administration Act.
Obtaining a grant
Depending on the assets which form part of the estate, it may be necessary for the executor(s) named in the Will or an appropriate family member where no Will has been left to make an application to the Supreme Court of Western Australia to be able to deal with the assets of the estate.
There are three main types of grant that can be sought to administer a deceased estate:
- a grant of probate where a valid Will has been left
- a grant of letters of administration where a person dies intestate, or
- a grant of letters of administration with the Will annexed where a person leaves a valid Will but the appointed executor cannot act or there is no executor appointed.
Probate is the process of proving and registering the last Will of a deceased person in the Supreme Court. Probate is usually required if assets are held personally, as tenants in common or if an asset holder requires probate to be obtained as a condition of releasing the asset.
If a grant of probate is required, the executor(s) named in the Will would make the application. If no Will is left, certain family members can apply for a grant of letters of administration to administer the estate. There are other grants which may also be appropriate, depending on individual circumstances. Applications for a grant other than probate, such as an application for a grant of letters of administration, can be complex and should only be undertaken following advice being obtained from a lawyer.
In some circumstances, it is not necessary to apply for a grant of administration, such as when assets are held jointly. A lawyer can provide advice on whether it is necessary to obtain a grant of administration or if it is possible to administer an estate informally (ie, without the need to apply for a grant).
A lawyer can assist in the preparation of the documents required to apply to the Court for a grant of administration. Once issued, the grant provides the legal authority to an executor or administrator to deal with the assets of a deceased estate. It is important to seek legal advice to determine which grant should be sought.
Administering the deceased estate
Once a grant is obtained, a lawyer can assist the executor to administer the deceased estate. This may include:
- dealing with Landgate with respect to the transfer of properties
- liaising with banks and share registries to release or transfer assets
- liaising with aged care facilities to receive bonds or deposits
- advertising for creditors
- attending to payment of liabilities, and
- assisting in the distribution of gifts or bequests.
A lawyer can also provide advice in relation to the ability of family members to ‘challenge a Will’ and bring a claim to seek provision (or greater provision) out of a deceased person’s estate. If such a claim is anticipated, a lawyer can advise if any steps should be taken to preserve the assets of the estate. A lawyer can also provide advice to executors/administrators about defending, or negotiating the resolution of, such claims.
It is advisable to seek preliminary advice once a person passes away regardless of the size or nature of the estate involved. A lawyer can provide specialised advice on the practical and procedural aspects of acting as an executor/administrator and of dealing with the Court and asset holders.
Each estate is unique. A proper consideration of the above matters can save time and expense when dealing with a deceased estate.
How can I find out more?
IRDI Legal provides a thorough estate administration service which is tailored to your personal circumstances. Our experienced Wills and Estates team handle all aspects of estate planning and administration. Please contact us to find out more.