Losing a loved one can cause major distress and the grief can be very disorienting. When you are trying to process the death of a friend or family member whilst also trying to manage their affairs, it can feel incredibly overwhelming. In this blog post, we provide a step-by-step guide so you can carry out your responsibilities as an Executor with less stress.
Establish if the deceased left a Will
Before you begin administering the estate, you will need to determine who has the legal authority to act as the Executor. This usually requires a copy of the Will to ascertain who was named as the Executor of the estate. The nominated Executor must be willing and capable of acting in this capacity.
If you have located the Will, you are off to a good start. If you do not have it, you must establish if the deceased in fact made a Will and where it would be kept. Often Wills are stored at the offices of the lawyer who prepared them or in a safe deposit box at a bank.
If the deceased did not have a Will or no Will can be found despite best efforts to locate it, you should seek legal advice about the next steps.
Arrange the funeral
Once the Executor has been established, the first step in administering the estate is to organise the funeral.
Some people include specific wishes in their Wills relating to funeral arrangements. Some people also purchase a pre-paid funeral plan, so it is important to double-check their documents if you are unsure about whether they have one.
Payment for the whole funeral (or any outstanding costs not covered by a pre-paid funeral plan) can be paid out of the deceased’s bank account. Be sure to obtain an invoice from the funeral home that can be provided to the deceased's bank so they can make the transfer.
Collect the required documentation
As the Executor of the estate, you will be required to prove that you have the authority to discuss financial and other personal affairs with the deceased’s bank, insurance and utility providers, and any other organisations you have to liaise with in the course of administering the estate. It is therefore crucial that you have a copy of the deceased’s death certificate. The death certificate can take up to 6 weeks to be issued.
You may also be required to provide documentation linking you to the deceased, such as a marriage or birth certificate. A copy of the Will will be useful to have at hand, as well as other forms of identification such as your drivers licence or passport if you were not related to the deceased.
Once you have all of this information in order you can apply for probate. Probate is the legal process that certifies the validity of a deceased person’s Will. If the deceased did not leave a Will, you will need Letters of Administration to be able to continue to administer the Will and ultimately distribute the estate.
Apply for a Grant of Probate or Letters of Administration
A Grant of Probate is a document the Supreme Court issues to confirm the appointment of the Executor and the validity of the deceased’s Will. Applying for a Grant of Probate may or may not be a step you have to take in administering an estate.
You will not need a Grant of Probate if the deceased’s assets were jointly owned, such as a couple who owned a house together as joint tenants.
If you need a Grant of Probate to administer the deceased’s estate, you will have to apply for it through the Supreme Court of Queensland.
Letters of Administration are similar to a Grant of Probate but are applied for in cases where the deceased died without a Will (and some other unusual circumstances).
The application for either a Grant of Probate or Letters of Administration should be submitted to the Supreme Court within 6 months of the date of death. The court will require an explanation if the application is delayed beyond this timeframe.
Compile an inventory of the deceased’s assets and liabilities
Laying the groundwork before you have to settle accounts will make life a lot simpler when it comes time to distribute the remaining assets to the beneficiaries. In this step, you will need to identify all of the deceased’s assets and liabilities. Some Executors will find it easiest to list these in a basic spreadsheet, but it can be recorded in any way you find accessible.
Listing additional details such as account details, insurance policy numbers, or land titles next to each asset or liability can also be handy as you will need to refer to this information frequently.
Prepare the deceased's assets
In order to take the final steps to administer the deceased’s estate, you will need to gather all of their assets.
This activity will depend on the type and size of the assets left behind by the deceased but typically includes closing bank accounts, collecting the proceeds of life insurance policies or any death benefit payable under the deceased's superannuation policies, transferring real estate or shares to relevant beneficiaries (or selling the assets if you are so instructed).
Take care of the deceased’s tax affairs and outstanding debts
The deceased’s debts must be settled before any assets are distributed. This step includes preparing a final tax return(s) for the deceased and paying any outstanding income tax owed to the Australian Taxation Office.
Estates may also be required to pay tax. If applicable, the Executor will also need to lodge a tax return on behalf of the estate and ensure any tax owing is paid.
Distribute the balance of the estate
After all of the outstanding debts and taxes have been finalised, you are now able to distribute the deceased's assets to the beneficiaries named in the deceased's Will.
If you have been named as an Executor of a deceased estate and require assistance with applying for a Grant of Probate, or your loved one has died without a Will and you need Letters of Administration, please contact one of our experienced Wills and Estates lawyers on (07) 4052 0761.