Deceased estates & probate Resolving deceased estate, inheritance & probate issues. When a loved one dies it can be a traumatic and stressful time. Not only is there the emotional stress but there is the stress of all the legal issues to deal with. We can help guide you through the legal aspects of dealing with the estate. Many questions arise when someone dies. Is there a Will? Do I need to obtain a Grant of Probate? How do I collect the assets and distribute the estate? We can answer all your questions and provide advice as to the best way forward. We can handle the estate from start to finish to help make the process as easy as possible for you during such a stressful time.
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When a person dies and leaves a Will, the Will sets out how that person’s property is to be distributed. Depending on the nature of that property, an application made be needed to a Court for what is called a Grant of Probate. Probate is official recognition by the Supreme Court of the deceased’s Will and enables the persons appointed as executor to distribute the estate as set out in the Will. The property which usually requires a Grant of Probate includes interests in land, substantial parcels of shares or largish amounts in bank accounts, accommodation bonds where the person has died in a nursing home. The applications for a Grant of Probate are technical and the use of an experienced lawyer can facilitate a Grant at the earliest opportunity. There are fees paid to the Court for the application. Until a Grant is made by the Court, the assets are “frozen” and can be only dealt with in accordance with the Will after a Grant of Probate has been made.
Superannuation & Death Benefit Claims
It is a common feature of estate administration work to find now that superannuation benefits often form a large proportion of assets to which the deceased was entitled at the time of death. Superannuation benefits are largely governed by the terms of a Trust Deed whether held in a Self Managed Superannuation Fund (SMSF) or a public, industry or statutory Fund. The Trustees of the Fund have a discretion to pay benefits to a limited range of persons depending upon their relationship with the deceased. The discretion of the Trustees may be curtailed by the presence of a valid Binding Nomination signed by the deceased. Trustees invariably will honour such a nomination and pay the benefits to the persons nominated.
In the absence of a nomination, the Trustees may pay the benefits to the range of persons referred to above or into the deceased estate.
Estate administration is the process commenced by the legal personal representative of the deceased, usually the executor named in the Will. The lawyers involvement usually commences after the funeral and involves:
Securing the assets and checking insurances etc Making enquiries and searches as to extent of assets and liabilities Communicating with beneficiaries Preparing and obtaining a Grant of Probate Collecting in assets from banks, insurance companies, sales of shares etc Payment of any liabilities of the deceased Liaising with accountants concerning preparation of any relevant tax returns Distribution of the assets to the beneficiaries named in the Will.
These are disputes which arise during the administration of a deceased estate and commonly can include disputes between executors as to how the estate should be administered. Alternatively, there may be disputes between beneficiaries as to their entitlements. Another example of an estate dispute is an inheritance claim which is dealt with below.
If you think you have been left with inadequate provision in the Will of a deceased, you may be able to make a claim under the
Inheritance (Family Provision) 1972. The categories of claimant are limited and we can advise you as to your rights.
Letters of Administration
If a person dies and fails to leave a Will, the law specifies who may apply to represent the deceased and how the property of the deceased is to be distributed. In general terms, the next of kin of the deceased is entitled to make application to the Court for a Grant of what are called Letters of Administration. Until the Court makes a Grant, the property of the deceased is “frozen”. Once a Grant is made the Court appointed administrator must then distribute the property in accordance with the rules set out for the distribution of the estate under the Administration & Probate Act 1919.