A loved one has passed away – where to from here?
When a loved one passes away, it can be a tough time, especially if you have the responsibility of being an Executor or Administrator of their Estate. The process of administering the estate can be complex and overwhelming, more so if you have not acted as an Executor or Administrator before. Here is some basic information that should help get you moving in the right direction.
The Must-Know Terms for Estate Administration
An Executor is a person who is nominated in the Will to administer the estate. There may be more than one Executor. An Executor does not need to be qualified for the job, anyone above the age of 18 can take this role if they are able and willing.
An Administrator is a person whom the Court appoints to administer the Estate in circumstances where to deceased did not have a Will, an Executor was not expressly appointed or the appointed Executors cannot act. An Administrator may be known to the deceased or, in circumstances where the beneficiaries request or where there is no other suitable option, the Public Trustee or a private trustee company can be appointed by the Court. However, in usual circumstances, an Administrator will be people who are entitled to all or part of the Estate.
A grant of probate is a formal acknowledgment from the Supreme Court that the Will is in fact the last Will of the deceased. It is important to ensure the Will is the last Will so that the wishes of the deceased can be carried out. The cost of applying for probate depends on the value of the estate and pricing can be found on the Courts Administration Authority of South Australia website.
Letters of Administrations
A grant of Letters of Administration is required when there is no Will. The grant of Letters of Administration is issued by the Probate Registry and is an authorisation for the Administrator to act in administering the Estate by following the laws of intestacy.
A registrar’s Certificate is required for each asset that forms part of the Estate and is used to facilitate proof that the asset forms part of the deceased’s estate. It is common for financial institution’s and organisation’s to require the Registrar’s Certificate in order to deal with the asset. Registrar’s Certificates are issued, regardless of the need for a grant of Probate or a grant of Letters of Administration.
The Basic Steps for Estate Administration
- Wait for the Death Certificate
Generally, there is little that can, or needs to be, done before the issuing of the death certificate. Please do not hesitate to call our office if you are waiting for the death certificate as we can provide some reassurance to you. However, if you wish to wait for the death certificate before calling, this is also appropriate. Once you have the death certificate, we will make an appointment for you to come in and meet one of our solicitors who specialise in estate administration.
- Initial Appointment
At your initial appointment, you will meet your solicitor to start the ball rolling.
It is important that all Executor’s must be present at the first appointment, where possible, so we can ensure we are acting on the appropriate instructions. The first appointment can be carried out via Skype or Microsoft Teams if it is more convenient to do so.
Even if our initial appointment is not in person, we still require several original documents to verify identity and to help us prepare for probate (if required).
If your appointment is in person, it is helpful to bring along the following to your first appointment:
- The Original Death Certificate;
- The Original Will (if our office does not already hold it in safe custody);
- Executors Driver’s License and Passports (noting that a birth certificate and Medicare Card may be provided in lieu of a valid Passport);
- Recent Bank Statements of the deceased;
- Details of the nursing home the deceased were in (if relevant);
- Information relating to Shareholdings (preferably displaying the HIN number).
- Initial Letters
After your initial appointment, our Estates Administration Team will begin sending out initial letters to financial institutions to ascertain the value of the assets contained in the estate. It is important to provide accurate values, as at the date of death, in the Probate/Letters of Administration Application. Upon receiving our letters, the financial institutions generally provide us with forms that they require to be filled in. We may need to get you back into the office to sign these forms but we will keep you updated along the way.
- Probate Signing
Once we have obtained the values of the assets and liabilities, we will prepare the Probate Application and make an appointment for you (the executor) to come in and sign. We will apply along with the original Will once it has been signed.
- Start Administration
When we receive the grant of Probate or Letters of Administration, we are now in a position to start administering and distributing the Estate by the Will or Intestacy Laws.
Some things to be aware of
You should be aware that if you do not have a Will and you hold assets interstate, those assets may be governed by different state laws. These laws are not necessarily consistent. Laws from one state may apply to a particular asset even if the deceased never resided in that state.
Superannuation and Life Insurance
Superannuation and Life Insurance can be dealt with differently from other assets. In some circumstances, the deceased will have a binding death nomination in place and the benefit will be paid according to that nomination. If the nomination has lapsed, the trustee of the superannuation company will determine whom to pay the death benefit.
The Deceased’s wishes contained in the Will may not always be final. If a beneficiary is unhappy with their inheritance, they may be able to make a claim for further provision (a more substantial inheritance).
However, not just anyone can make a claim. The person must be empowered by Law to make a claim. Those empowered by Law in South Australia are the spouse, de-facto, children, grand-children, former spouses, or dependents of the deceased.
Common circumstances where claims arise are where there has been a second marriage or a breakdown in relationships between parents and children or siblings.
Whilst the deceased, or the Executor(s), cannot stop someone from making a claim, some measures can reduce the chances of a claim. These include:
- Using a binding death nomination for Superannuation
- Ensuring the nominated beneficiaries for any life insurance policy are whom you intend to benefit
- Hold assets in trusts. We recommend obtaining financial advice before implementing trusts
- Compile lists of any gifts already made in your lifetime which explain why someone’s inheritance is limited
- Using a binding financial agreement
- Making gifts while you are still alive