Frank J. Horvat & Co
Probate & Deceased Estates
Probate & Deceased Estates
A deceased estate comprises the assets and debts that a person leaves after they die. Assets might include real estate, jewellery, furniture, cash, shares and cryptocurrency. Debts might include formal and informal loans, credit cards, store credits, and any money that is payable to the Australian Taxation Office.
The process of winding up and distributing a deceased estate is called estate administration. It involves settling the debts of the estate and delivering the remaining assets of the estate to the beneficiaries. It also involves managing any financial and legal issues that arise from the estate. This can be a challenging task, particularly when grieving the loss of a loved one.
We can assist with all aspects of estate administration, from identifying and collecting assets, applying for probate (or letters of administration), transferring assets and property and reporting to beneficiaries.
Executors and Administrators – What’s the Difference?
When you make a Will, you need to nominate one or more people to administer your estate when you die. This person is known as your executor and their primary responsibility is to fulfil the terms of your Will, which typically means paying your debts and distributing your property as you have instructed. An executor, however, also has significant discretionary powers which means they can overrule the terms of your Will if it is necessary. For instance, the executor can pay debts even if it means that they cannot strictly follow the bequests set out in your Will.
An executor may need to apply to the Supreme Court for a grant of probate. Probate is a legal process that confirms the validity of your Will and gives an executor the legal authority to deal with estate assets (such as to transfer an asset into their own name or to sell it). A grant of probate is often required before a third party (such as a bank) will release an asset.
If you die without leaving a valid Will, someone (typically your next of kin) will usually need to apply to the Supreme Court for letters of administration. This is a different version of probate, where the Court authorises someone to perform the estate administration. The need to apply for letters of administration usually incurs additional stress, delay and costs for your family which is just one of the reasons why every adult should make a Will and keep it secure and up to date.
Executors and administrators have many responsibilities which typically include:
- making funeral arrangements
- obtaining the death certificate
- identifying and protecting assets
- applying for a grant of probate or letters of administration
- contacting the deceased’s account providers and government authorities
- claiming funds under superannuation and life policies
- distributing assets, and transferring property to beneficiaries
If you need assistance, contact one of our lawyers at [email protected] or call 03 9300 1077 for expert legal advice.