It’s never easy when a loved one passes away. It can be an incredibly stressful time for the deceased’s family and close friends as they attempt to contact family scattered across the globe, organise the funeral, and begin to sort out the deceased’s affairs.
Something that each of us can do to help our loved ones through this time is to have a will drafted, stating what we wish to happen with our assets and personal effects. When drafting a will, it is also important that the will-maker decides who is going to be its executor.
Put very simply, an executor’s job in relation to administering the deceased’s estate is to make sure the clauses of the will are effected in a timely manner. So it needs to be someone who you trust. Administering an Estate is typically not easy, which is why many executors ask for lawyers to assist them in the process. Usually, the first step after the will has been read is to apply to the New South Wales Supreme Court for a grant of probate, or the State equivalent where the deceased was residing before they passed away.
- When applying for a grant of probate, the executors are to provide an original copy of the deceased’s last will and death certificate to the Court.
- Applying for or receiving a grant of probate from the Supreme Court only happens when somebody has a will when they pass away. If the deceased dies without a will (called ‘intestate’), then their closest next of kin can apply for Letters of Administration (more on this below).
- A grant of probate gives the executor legal recognition that they are the authorised person to administer the estate in accordance with the deceased’s will.
- An executor is not able to distribute the deceased’s estate as they wish, and must follow the will.
- There is no formal time limit on executors to apply for a grant of probate. However, we recommend they do so within 6-12 months from the deceased’s death. Executors who wait more than two years risk unhappy beneficiaries applying to the Court to have them removed.
But what happens if my loved one has passed away and they didn’t leave a will? Do all their clams and diamonds go into the government’s pockets?
No, not at all.
If your loved one has died without a will:
First, take the hint to do your own.
Second, their estate will be distributed to their family as per the intestacy provisions. For the sake of this article, let’s say that the deceased leaves behind an estate worth $1 million (excluding personal effects). Currently, this means:
|(a) A spouse and children from the relationship||Spouse gets full one million dollars.|
|(b) A spouse and children from a previous relationship||The spouse gets:
· the deceased’s personal effects
· the first $350,000 adjusted by the Consumer Price Index
· half of whatever else is left
Any child/children left then split the remaining half between them
|(c) more than one spouse||Spouses split the estate between them equally. For example, one husband and one defacto partner would mean that each husband/partner would receive $500,000 each.|
|(d) Children only (excludes step children)||Children split the estate equally between themselves = $250,000 each.|
|(e) No spouse or children||The estate is split equally between the surviving parents.|
The legislation in this area keeps going and going.
Given the complexity of determining who gets what when someone dies without a will, it is our recommendation that everyone makes sure that they have a will as soon as possible.
This article has been written based on the laws in New South Wales. Shine Lawyers welcome the opportunity to assist clients in creating a succession plan (wills) as well as estate administration and all other facets of estate litigation across the country.
The information on this website is for general information only and are not (and nor are they intended to be) a substitute for professional medical or mental health advice, nor is it used for diagnosis and treatment. You, or anyone you are concerned about, are encouraged to seek professional medical or mental health advice and treatment from suitably qualified medical and clinical practitioners and providers.
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