Probate and Administration of Estates

Why do I need to Obtain a Grant of Probate/Letters of Administration?

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.

Who Makes the 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 if that is not the case, technically the executor of the Will has the right to make funeral arrangements.

My Loved One has just Passed; What do I do Now?

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:-

1. Any Will (even if it has been revoked).
2. Documents relating to any bank account and other assets held by the deceased such as motor vehicle registration papers and share holding certificates.
3. In the event that the deceased owns property, if available, the certificate of title for the property, or at least a clear description of the property.  (Note,  even though certificates of title are still held by many people, they technically became redundant on 11.10.2021. and the original document is no longer required to finalise the affairs of the estate).
4. Details of membership of any club or organisation, and entitlement to payments such as a government pension, health fund payment, or superannuation payment.
5. If the deceased was paying tax, a copy of the most recent tax return, notice of assessment and recent PAYG statement.

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 original is temporarily required so that certified copies can be made.

How Long Will the Process Take?

A minimum period to finalise a simple estate may be around 4 months, but usually the time-frame would be 6-9 months, or perhaps a year or more to finalise all aspects of a more complex estate.

Why do I need a Lawyer?

Following the death of a person the lawyer's role is to:-

1. Examine relevant documents including any Will.
2. Determine whether a grant of probate, or letters of administration needs to be made.
3. Prepare documents if necessary to obtain a grant of probate or letters of administration.
4. 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.
   • Ensuring that none of the entitled beneficiaries are bankrupt.
   • Dealing with the transfer of any assets or the payment of any moneys to beneficiaries in accordance with the terms of the Will (subject to bankruptcy status).
5. There may be actual or potential disputes in relation to the will or the distribution of the estate, and we will give advice and obtain instructions to deal with any such issues.