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 or where no appointed executor is able to act. Not all estates will require a Grant of Probate or Letters of Administration of the court.
Benefits of a solicitor managing probate or administration of estates
Obtaining advice as to whether a formal court process to appoint an executor or administrator is required or not.
Guidance on what is required to finalise an estate.
Experience to cut down on the time it takes to finalise estates.
Support and assistance for Executors and Administrators.
Costs are regulated by law and based on the value of the estate.
We assist with:
Checking the will for any issues. If there are any issues, we will examine what can be done to address them.
If there is no will, invalid will or other significant issue with a will, then identifying who can apply to be the Administrator of the estate.
Following the correct court process.
Keeping proper records of money coming in and paid out of the estate.
Draft all court documents and file all court notices.
Regular updates to the Executor or Administrator.
Where authorised, keeping estate monies in safekeeping and distribute any funds to the beneficiaries, usually 6 months after the death of the deceased.
Dealing with any claims on the estate.
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 before the parent's death. The parent does not include the child in their will. The adult child makes a claim on the estate of their deceased parent. The child was once a dependent of the parent and, therefore, is typically entitled to make a legal claim. The success of the child's claim will depend on the facts of the matter.
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, the executors are incapable or have died, 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 entitled to a benefit;
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 in the Probate process for proof.
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?
Not typically. 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 as 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 who benefits from your will.