Deceased Estate Probate
Executors play an important role in ensuring the Will and wishes of a loved one are carried out after they are gone.
An executor (where there is a Will), or administrator (where there is no will or a Will but no executor), is the person or people responsible for looking after a deceased person’s estate. You are legally obliged to act in the interests of the estate, following the deceased’s wishes expressed in his or her will and if there is no will, in accordance with the rules that determine who is entitled to the estate.
If you have been named executor for a friend or family member please keep in mind that this is your final act of love and friendship. The deceased trusted you with this responsibility and you should be honoured by that trust as you fulfil your duties as executor.
The nature and extent of the executor’s appoint can vary greatly, depending on the terms of the Will, the location of assets and the ages and circumstances of the beneficiaries.
Whether a grant of probate or letters of administration are required depends on the size and nature of the estate.
Probate is an order from the Supreme Court stating that a Will has been proved to be the last and proper Will of the Will maker and permits the executor to sell, collect and distribute the estate assets to the beneficiaries.
A grant of Letters of Administration is a legal document issued by the Court, which allows a nominated person (known as the administrator) to manage and distribute the deceased’s assets in circumstances where there is no Will or there is a Will but no executor is available to act.
If a deceased person has not left a Will, the beneficiaries of the estate will be determined by legislation, often referred to as “the rules of intestacy”. These rules provide which family members receive the deceased’s estate and the order of priority.
For most estates, it is expected that all tasks of an executor or administrator (including final distribution of assets to beneficiaries) will be completed within 12 months of the person passing away. Where a Will is contested, involves trusts, or makes special provisions, the timeframe can be longer. The exact timeframe will depend on a number of factors including:
- Assets held in the estate
- Whether property is to be transferred or sold
- Whether the Will is contested
- Locating beneficiaries
- Whether any life interests (such as rights of residence) have been granted
- Whether any trusts are to be established.
At Kells, our experienced team can help you with all necessary tasks to manage and finalise a deceased estate including:
- Liaising with asset holders such as banks, credit unions and superannuation funds
- Preparing the forms necessary to apply for a grant of probate with the NSW Supreme Court
- Defending the estate against any family provision claims
- Assisting with the sale of assets such as shares and real estate
- Liaising with financial advisors to address taxation or stamp duty issues
- Attending to distribution of the estate.
At Kells, we understand that dealing with a deceased estate is a stressful experience and our aim to ease that difficult time by taking care of the legal issues. Call our estate planning lawyers to find out more or to schedule an appointment.
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