At some point or another, most of us will be faced with the daunting task of arranging a loved one’s affairs, following their death.
One of the most common questions we as lawyers are asked following the death of a loved one is “what do I do now”?
There are a number of matters which will need to be attended to down the track. The immediate concern for most however is what to do in the period between death and a Death Certificate being issued by Births, Deaths & Marriages in the relevant State or Territory.
The Department of Human Services has developed a useful webpage setting out the practical issues that must be dealt with following a loved one’s death, as well as guidelines of whom to notify following the event.
It is important to notify certain key organisations such as Centrelink, the Department of Veteran Affairs, ComSuper or the like, if the deceased is in receipt of pension payments, so that these payments may be ceased as soon as possible. By acting quickly it will avoid exposure by the estate to any overpayments; which will subsequently need to be repaid to the relevant organisations.
In addition to making the appropriate notifications, the next of kin and/or executors should be made aware of the following matters.
Locate the Original Will
Together with the Death Certificate, this is the most important document required in order to administer a deceased estate. It is important that you locate the original document, and not just a copy. If you are having difficulties locating the original document because the law firm or solicitor is no longer practicing, you can contact the relevant State or Territory Law Society, and they may be able to assist you with tracking down the original Will.
Once located, it is a good idea to review the Will (or the Enduring Power of Attorney or other documents as applicable) to find out if the deceased had any special preferences regarding their funeral arrangements and the disposal of their body.
If the deceased died without leaving a valid Will, then the deceased has died intestate. If this impacts you, please contact our office and we can advise you of the next steps.
An Enduring Power of Attorney ends on death
An Enduring Power of Attorney ceases to operate on the death of the Principal. This means that you are unable to continue to use the Enduring Power of Attorney document to assist with the running of your loved one’s affairs following their death.
It may be necessary to wait until the Death Certificate is issued before the deceased’s affairs can be dealt with. It may also be necessary to obtain a Grant of Probate in order to realise certain financial assets. Tetlow Legal can advise you, if and when, a Grant of Probate or Letters of Administration is necessary. For further information, please refer to our article on “Being the Executor in a Deceased Estate”.
Bank accounts (other than accounts in joint names) cease on death
A loved one’s bank accounts should not be accessed, and funds withdrawn, after they have passed away. There are some exceptions, for example, when an account is held in joint names, then it may be possible for the surviving account holder to continue to operate the account and forms subsequently lodged in order to remove the deceased’s name from the account. This may not always be the case and will be subject to your financial institutions requirements.
It is important to distinguish between joint account holders and third party signatories. If you are the signatory to a bank account of the deceased’s, then your authority over the account is immediately extinguished on the deceased’s death.
If the account is a joint account then it will usually be possible for the surviving joint account holder(s) to continue to operate the account.
Once the financial institution has been notified of your loved ones death, they will put a freeze on the account.
It may be necessary to make alternative arrangements in order to pay bills and other expenses which arise between your loved ones death and a Grant of Probate being issued.
You may wish to in the first instance seek extensions to make payment of the accounts. Alternatively, the executor may make arrangements to personally pay the accounts in the interim, and seek reimbursement once funds are made available in the deceased’s estate.
As a general rule, any reasonable and necessary expenses that an executor meets on behalf of the deceased after their death may be reimbursed from the deceased’s estate once Probate is granted. It is important to keep a copy of all invoices and receipts paid on behalf of the deceased.
Payment of Funeral Expenses
Funeral expenses can be costly and there are often concerns about the practicalities of paying the account.
Ultimately, the deceased’s estate is liable for its payment. There are a number of methods you can adopt in order to pay the account. They include:-
- As previously discussed, the executor can pay the account and subsequently seek reimbursement from the deceased’s estate. This may not be practical for many executors.
- You can seek an extension of time to pay the account with the Funeral Director. We note however that this may not be possible.
- Most financial institutions will provide an early release of funds from the deceased’s bank account in order to pay the funeral expenses. The executor named in the Will or next of kin should approach the financial institution and complete the necessary paperwork if this option is elected.
- Finally, you may wish to also check whether the deceased held a funeral plan or insurance policy which secures payment of the funeral expenses.
Collect the Death Certificate
Generally speaking, you will be unable to commence dealing with the deceased’s assets until at the least, a Death Certificate has been issued. The Funeral Director will usually arrange this for you. The Death Certificate usually takes about 4 to 6 weeks to be issued.
We strongly recommend that if you are the executor of a deceased estate, you contact Tetlow Legal as soon as possible following the death of a loved one, so that we may guide you through the processes involved.
If you would like further information, please contact Brian Tetlow or Emma Bragg on (02) 6140 3263 or [email protected].