The loss of a loved one is always challenging, and the last thing anyone would want to deal with at this difficult time is getting involved in the legal aspects of administration of a deceased Estate.
Let’s take this case study below as an example.
Steven’s mother Louise has recently passed away, and he is uncertain about the existence of a Will or the necessary steps he needs to take moving forward in relation to her Estate. The Estate mainly consists of two real properties – one in Queensland and one in Central Coast. Steven’s brother Ray does not wish to be involved in this process and asks Steven to ensure everything is done properly so that the Estate is divided 50/50 between them. Steven comes to Surge Legal for advice and we are able to assist him in navigating the intricacies of his mother's estate including but not limited to the following:
1. Determining the existence of a Will:
The first step is to determine whether Louise left a valid Will. We Will help Steven search for a Will by:
Contacting Louise's solicitor or financial advisor, who may have prepared or stored the Will
Contacting local solicitors in the area and enquiring for a copy of a Will;
Checking with the NSW Trustee & Guardian for a copy of a Will;
Advising Steven to carefully looking through Louise's personal papers and belongings
If a Will is found, we will have to check if it is legally valid and complies with the requirements under Australian law.
2. Applying for a Grant of Probate or Letters of Administration:
If a valid Will is discovered, we will assist Steven in applying for a Grant of Probate, which is a legal document that authorises the executor named in the Will to administer the estate (assuming the executor named in the Will is Steven). We will firstly publish a notice of intended application at least 14 days prior to the filing for Probate to let any interested parties be aware of such intended application, as per the requirements.
The Application is made to the Supreme Court of New South Wales and there is a list of documents required to be prepared as part of the Application. We ensure these documents are drafted properly to avoid any requisitions from the Court, meaning that any delays will be minimised.
If no valid Will is found, we Will help Steven apply for Letters of Administration, which is also done through an Application to the Supreme Court of NSW. This grants the authority to administer the Estate according to the intestacy rules under the Succession Act 2006 (NSW). Assuming no Will is found to the contrary, Steven and Ray are likely to be the primary beneficiaries of the Estate under these rules.
3. Identifying and valuing assets:
We will guide Steven in identifying and valuing all assets owned by Louise at the time of her death. This may include real estate, bank accounts, investments, personal belongings, and any insurance policies or superannuation funds.
4. Settling debts and liabilities:
Before distributing the estate to beneficiaries, any outstanding debts or liabilities must be settled. We assist Steven in identifying these debts and ensure they are paid using the assets from the estate.
5. Distributing the estate:
Once debts have been settled, we will assist Steven in distributing the remaining assets according to the provisions of the Will or the intestacy rules. This process may include transferring property titles, liquidating assets, and distributing funds to beneficiaries. As one of the properties is in Queensland, we would need to engage the services of a conveyancer in Queensland to assist with the transfer.
6. Handling disputes and challenges:
In some cases, Wills and estates may be subject to disputes or challenges. As experienced estate lawyers, we are prepared to handle any potential disputes, including Family Provision Claims made under the Succession Act or any contestations to the validity of the Will.
In this case for instance, if a Will is found and Ray for some reason has been left out of the Will, there is a possibility that such litigation would ensue and we will then have to assist Steven in defending his legal entitlements in the Supreme Court, unless the matter can be resolved by consent.
7. Finalising the estate:
After all assets have been distributed, we will ensure that the estate is finalised, providing a final account of the estate administration to the beneficiaries.
Conclusion:
Losing a loved one is never easy, but the legal process that follows can be navigated smoothly with the guidance of an experienced Wills and Estate lawyer. In assisting our clients in these matters, we always ensure that all necessary steps are taken to administer the Estate efficiently and in compliance with the law, providing them with the peace of mind at this difficult time.
Contact us for a free initial consultation regarding your Wills and Estates matter on 02 8722 5021.