shoalhaven heads / nowra probate & Deceased estates

Deceased Estates

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Probate is a legal process that is followed when a person dies and they died with a valid will. Letters of Administration is a similar process that applies when a person dies without a will or without a valid will. A person might have an invalid will if the will did not comply with certain formal requirements or the will is confusing or can't be fully carried out for some reason.

  • We check the will, if any, and check whether it is valid or not.

  • Depending on whether the will is valid or not, or where there is no will at all, we provide advice and follow the correct court process to prove the will or alternatively, where there is no will, kinship ties.

  • We inform anyone who may have an interest in the deceased person’s estate of their death.

  • We keep proper records of money coming in and paid out of the estate.

  • We draft all court documents and file all court notices.

  • We keep executors or, where there is no will, the next of kin up to date will any progress in the matter.

  • Hold any estate monies in safekeeping and distribute any funds to the beneficiaries, usually 6 months after the death of the deceased.

    Benefits of a solicitor managing probate or administration of estates

  • We have the experience to get it done quickly, carefully and efficiently.

  • We make it easy for the executors who don’t have to worry they might be doing the wrong thing. Executors who don’t properly carry out their role as executors can be held personally liable for their mistakes by the beneficiaries of the estate.

  • Costs are regulated by law and based on the value of the estate. Small estates are charged less and bigger estates with more complex assets are charged more.

Claims on a deceased estate

What is a claim on a deceased estate?

It is a claim for money from the estate of a deceased person. Estate claimants would be in two categories: The first is creditors of the estate, for example, funeral directors, medical services, providers of assisted accommodation, and anyone who was owed money by the deceased before the deceased person passed away. The second category is persons who those who believe they have a moral claim on the estate - meaning, they believe that the deceased person should have left them some money or assets or more money and assets than they have been left by the deceased person. Generally, in category 2, a person must show they had a financial dependence on the deceased person. This is the so-called Family Provision Claim. 

Typically, an eligible claimant would include a spouse, de facto partner or child (including an adult child), but it could also be a former spouse or partner, step-child,  unpaid carer and anyone else who might have a dependence claim on the estate. 

Example: An adult child has had a poor relationship to their parent for many years. The parent and child did not even speak to each other for the two years prior to the parent's death.  The adult child can nevertheless make a claim on the estate of their deceased parent, even where the parent excluded them from their will or where the parent, in the view of the child, did not make sufficient provision for the child in their will.  The child was once a dependent of the parent and therefore is entitled to make a legal claim. The success of the child's claim will depend on the facts of the matter.

Typical Fees and Costs

 

When probate is managed by a solicitor, the fees will have two components:

  • Solicitors fees (usually based on the scale in Table A)

  • Court filing fees (based on the scale of fees set by the Supreme Court of NSW – see Table B)

The correct scale is determined by adding up the gross value (also called the unencumbered value) of all the assets of the person who has died. 

Example: The deceased has a house and other assets including money in the bank and a car together worth $500,000.00. The mortgage on the house is $200,000.00. The gross value of the house is $485,000.00. The car and other assets are estimated to have a value of $15,000.00. The car and other assets are fully paid off. The mortgage does not affect the gross estate value. The total gross value is $500,000.00. The scale “Exceeding $150,000 but not exceeding $1,000,000” (Table A below) is the fee scale that will be charged.

Table A:
Solicitors fees

Working on a scale generally means you are charged less than a solicitor’s hourly fee. In addition, where our hourly fee would be less than the scale fee, we only charge the hourly fee.

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Table B:
Court fees

Summons for Probate/Administration/Reseal 

NOTE: Fees calculated on the gross value of the NSW assets only 

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Grants of Probate and Letters of Administration

​What is probate?

Probate is the process of proving the Will of a deceased person at Court. It is usually done in the form of an application and does not require the appearance of the executor or of solicitors at court.

What is administration of an estate?

Administration of an estate can mean several things but usually it means managing the distribution of the estate of a person who has died without leaving a will or where that person’s will is problematic - for example, because it is out of date, was not properly signed and witnessed, is not clear about what is to happen with the property of the deceased and so on.

Why is probate (or administration of an estate) necessary?

Probate is necessary for several reasons:

  • To give the executor or next of kin legal control over the assets of the deceased;

  • To guard against fraud by proving the deceased is the right person and the beneficiaries are the right people;

  • To keep the executor personally liable for their actions (or failure to act at all or properly);

  • To put the estate records up for scrutiny by anyone having a proven interest in the estate (such as a beneficiary, creditor or relative of the deceased);

Do all deceased estates need to be probated or administered?

​ No. It depends on the value of the assets the deceased owned at the time of death and how those assets were owned. Very small estates (less than $15,000.00 in gross value) will not generally go through the Probate process even where there was a will. Moreover, not all assets of the deceased will necessarily be included for proving in the Probate process.
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Even if you are almost sure that the estate does not need to be probated or administered, it is worthwhile for appointed executors or, in the case where there is no will, for relatives to get advice from a lawyer about this because the person dealing with the estate can be held personally liable by potential beneficiaries if they do not handle a deceased estate properly and finalise it promptly. Most estates should be finalised within 6 months of the death of the will maker.

If I don't have a Will will my property be forfeited to the government on my death?

No. It would be a very rare occurrence where assets would be forfeited to the government where you do not have a Will because (in NSW) the Succession Act 2006 (as amended) will provide that your property will be left to your nearest relatives.

Moreover, whether you know it or not, you have probably in your lifetime appointed natural successors to some of your property, even without having a will. For example, persons you own property with at a joint tenant automatically receive your share in the property on your death. Or, you might have nominated death beneficiaries for your superannuation or life insurance and this often has nothing to do with your will.