1. Who administers an estate – where you leave a Will, it falls to your Executor to administer your estate.
2. Your Will – it generally falls to your Executor to locate your Will. This is why we recommend our client’s notify their Executor and family members where there Will can be located.
3. Legal representation – your solicitor may seek the advice of a solicitor to assist in their role as executor and complete the administration of your estate. Legal representation is not a formal requirement and it falls to your executor to decide whether such advice is necessary. The costs of such legal representation will be deducted from the estate as an estate expense.
4. Locating estate property – your executor must determine what your estate is made up of by locating your assets and determining your debts. Generally your executor should review your papers, speak with your solicitor, taxation and financial advisors, banks and investment institutions. The executor must determine the exact ownership of each asset and debt to ensure it is dealt with correctly. For example if you owned a property with your spouse as joint tenants, that property does not form part of your estate and will be dealt with in accordance with the rules of joint tenancy outside of your Will.
5. Protecting estate property – once the estate property has been located it falls on the executor to ensure the estate property is protected and maintained. This means in the case of real property ensuring that the property is secure and adequately insured.
6. Apply for grant of probate – there is no formal requirement for a grant of probate to be made in Queensland and rather the decision will fall to the executor decide whether the value of the estate and circumstances of the deceased warrant the expense in applying to the Courts for the grant of probate.
Grant of probate will usually be required in the following instances:
- Where there is dispute or uncertainty as to whether the Will being administered by the executor is the last Will of the deceased or if the Will is invalid.
- Where there is a possible claim by third parties not named in the Will for provision.
- Where the value of the estate is large and it is a requirement of a bank, financial, insurance or investment institution that the grant of probate be obtained before any benefit is released.
7. Calling in of estate property, paying estate debts and distributing the estate – it will fall to your executor to call in your estate. Your executor may call in your estate by simply selling off your assets and having the proceeds of such sales deposited into an estate bank account or by transferring assets out of your name to the name of the estate.
Your executor must also pay all your estate debt and testamentary expenses (such as funeral costs, legal costs for the administration of the estate and tax liability).
Generally once all the assets have been collected by your executor and estate debts paid your executor may distribute the estate to the persons named and in the manner described in your Will. Your executor will at this time will determine if an asset or gift should be simply transferred to a beneficiary or converted to cash and paid to the beneficiary.