On the death of a person their Will governs how their estate is distributed. A grant of probate is an order of the Supreme Court certifying that a person’s last Will is valid, and authorising the executor named in the Will to administer the estate. Where a deceased person does not have a valid Will, a grant of administration is usually made authorising the next of kin to administer the deceased’s estate.
Funeral Arrangements – These arrangements, of course, need to be made immediately upon the deceased’s death and are usually undertaken by the deceased’s next of kin. Often the next of kin is also the executor of the deceased’s Will, but in circumstances where that is not the case, technically the executor of the Will has the right to make funeral arrangements.
Gathering Information – In order to determine what needs to be done to finalise the affairs of the deceased’s estate a search needs to be made (usually by the next of kin) among the deceased’s papers and personal effects for the following:-
- Any Will (even if it has been revoked).
- Documents relating to any bank account and other assets held by the deceased such as motor vehicle registration papers.
- In the event that the deceased owns property, the certificate of title for each property.
- Details of membership of any club or organisation, and entitlement to payments such as government pension, health fund payment, or superannuation payment.
A death certificate needs to be obtained and is usually organised by the undertaker and sent directly to the next of kin within 3 or 4 weeks of the funeral.
The Lawyers Role – Following the death of a person the lawyer’s role is to:-
- Examine relevant documents including any Will.
- Determine whether a grant of probate, or letters of administration needs to be made.
- Prepare documents to obtain a grant of probate or letters of administration.
- Once the grant has been made, finalise the estate by:-
- Obtaining payment of any moneys held in bank accounts.
- Obtaining payment of any insurance or superannuation policy.
- Ensuring that notification of the death is given to all relevant institutions such as Centrelink, Medicare, or a private health fund.
- Paying liabilities of the deceased.
- Dealing with the transfer of any assets or the payment of any moneys to beneficiaries in accordance with the terms of the Will.
- Dealing with any actual or potential disputes in relation to the Will or the distribution of the estate.
Time – The period that it takes to finalise the affairs of the deceased’s estate varies greatly depending upon the nature of the assets of the estate and the terms of the deceased’s will. A minimum period for a simple estate may be around 3 months, but for a more complex estate it may take 6-9 months, or perhaps a year or more to finalise all aspects of the estate.