After a person dies, someone must manage their assets and pay their debts. Although the person is no longer alive, their legal and financial affairs must still be finalised. The person responsible is usually appointed under the Will of the deceased.
Where a person is appointed under a Will, that person is called an “executor”.
An executor is chosen by the will-maker to carry out their wishes. The executor manages the estate and distributes assets to beneficiaries according to the Will. An executor may be a friend, a relative, or a professional.
Most people underestimate the complexity of administering an estate. Many also underestimate the time involved, and the role can become a significant burden.
What are the legal steps that are taken after someone dies?
The executor may need to apply to the Supreme Court of Queensland for probate. A lawyer usually assists with this process.
Probate is a court order that confirms the Will is legally valid. It also confirms the executor’s authority to administer the estate.
When do I need to apply for Probate?
There is no legal requirement to obtain probate in every estate. A grant may not be needed for smaller estates.
The need for probate depends on the assets in the estate. It also depends on the requirements of banks and other institutions holding those assets.
To confirm whether probate is required, the executor should contact each organisation holding estate assets. Each institution will explain its own requirements for releasing funds or transferring assets. A lawyer can assist with these enquiries.
If a dispute arises, or is likely to arise, the executor should consider applying for probate. A person who deals with an estate without authority may become personally liable to beneficiaries.
How to apply for Probate
An executor must first identify the deceased’s assets and liabilities.
Before filing an application, the executor must publish a notice of intention to apply for probate. This notice must be advertised at least fourteen days before the application is filed. It alerts creditors and potential claimants. It also gives them time to raise any objections.
The following documents are filed with the Supreme Court:
- Application for Probate
- Original Will and Death Certificate
- Affidavit in support of Application
- Affidavit of Publication and Service
The affidavit explains the relationship between the executor and the deceased. It identifies the Will and death certificate. It also confirms the validity of the Will where required. If issues arise, it explains them, including name inconsistencies or beneficiary deaths.
Additional documents may be required in complex estates. A lawyer can advise on what is needed.
Paying tax, debts and distributing the assets
The executor must finalise the deceased’s financial affairs. This includes dealing with any outstanding tax obligations. It may include lodging final tax returns for the deceased and estate tax returns during administration.
The executor must pay all debts before distributing any assets. If the executor distributes assets too early, they may become personally liable for unpaid debts or taxes.
Once probate is granted, the executor must notify asset holders. These include banks, superannuation funds, and share registries. The institutions then release or transfer the assets as directed.
If land is held solely in the deceased’s name, the executor can transfer it by lodging the grant of probate with Titles Queensland.
If the deceased owned land in multiple jurisdictions, the executor may need to reseal the grant of probate in each jurisdiction before transferring property.
Keeping beneficiaries informed
Executors must keep beneficiaries reasonably informed throughout the administration process. Beneficiaries are generally entitled to updates about estate progress. This includes information about assets, liabilities, probate status, and expected distribution timeframes.
Clear communication reduces conflict. It also helps prevent misunderstandings during what is often a stressful time.
Estate disputes and challenges to Wills
Disputes may arise during estate administration. Common disputes include family provision claims and challenges to the validity of a Will. These may involve allegations of lack of capacity, undue influence, or fraud.
If a dispute arises, the executor must remain neutral. The executor should not distribute the estate until the dispute is resolved. Premature distribution may expose the executor to personal liability.
Early legal advice helps executors manage disputes. It also reduces delays and legal costs for the estate.
Conclusion
This information is general only and does not constitute legal advice. Administering an estate can be complex. We recommend seeking advice from an experienced wills and estates lawyer before taking any action.
If you or someone you know wants more information or needs help or advice, please contact us on 07 5576 9999 or email [email protected].
