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What are the legal steps that are taken after someone dies?

After a person dies someone has to look after the assets of that person and pay the person’s debt. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased. Where a person is appointed by a will, that person is called “an executor”.

An executor is chosen by the person making the will to carry out their wishes in managing their estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes.

An executor may be a friend, a relative, or a professional.

Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden.

What is Probate?

What the executor does, usually with the help of a lawyer, is to make an application to the Supreme Court for Probate. Probate is a Court order declaring a deceased’s will valid and that the person named in the will as the executor can finalise the deceased’s affairs.

It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts has been relaxed over the years although an application for a Grant is still however necessary in many cases.

When do I need to apply for Probate?

To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the organisations requirements for transfer of those assets to the executor or the beneficiaries, this is best done through your lawyer.

Where a dispute may arise over the estate a person appointed as executor would be wise to apply for probate. Where a person does not have the right to deal with an estate, the person can be liable to beneficiaries.

Anyone appointed an executor must in the first place determine the deceased’s assets and debts. Once that is known you can then determine how the assets can be transferred to the beneficiaries.

In making an application to the Supreme Court, first you must:

  • advertise the application in a local newspaper
  • lodge a formal application with the Court with an affidavit (a sworn statement) containing
    • proof that you have advertised the application
    • provide details about the will
    • provide certain details about the deceased
    • the original will
    • do a search of the Registry records to indicate a previous Grant has not been made; and
    • a death certificate.

Paying any debts and distributing the assets

After the Grant from the Supreme Court Registry has been made, it is then sent to the various places where the deceased’s assets were held. That is literally to the deceased’s banks or share registries. Those institutions then transfer the money in those bank accounts, usually into a lawyers trust account.

Likewise, any land in the sole name of the deceased can be transferred to the beneficiary by taking the Grant to the Land Titles Office and making an application for that transfer.

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.

If you need to know any more about administering an estate please call Brian Tetlow or Emma Bragg on (02) 6140 3263 or email [email protected] or [email protected].