When someone close to you dies, it is an emotionally difficult time. There are also a number of practical matters that need to be attended to which can add further stress. If you are the one who is responsible for attending to these matters it can be an overwhelming and confusing process.
Over the years Mellor Olsson has helped many clients to navigate their way through these issues. The general information outlined below will help guide you through what you need to do if someone close to you has died and you are responsible for their affairs.
The executor of the deceased person's estate is the person legally responsible for burial and funeral arrangements. However, often family members or someone close to the deceased person will arrange the funeral and they may not necessarily be the executor.
The funeral director will collect information from the person arranging the funeral which is then provided to Births, Deaths and Marriages so a Death Certificate can be issued. It is important the information provided to the funeral director is correct otherwise the incorrect information is reflected on the Death Certificate. Where the Death Certificate records incorrect information a correction to the Death Certificate will be required at an additional fee. You need to make sure the full names of the deceased and the other relevant family members are provided and that all names and addresses are spelt correctly.
Depending on the deceased's circumstances, the funeral is usually paid for by their estate (from the assets they held at the date of death). If the deceased person has sufficient funds in their bank account, the bank will typically release funds to cover the payment of funeral expenses without the need for probate (referred to below).
Securing estate assets and dealing with liabilities
The executor or administrator of the estate becomes responsible for the deceased's assets and liabilities. Estate assets should be secured which can involve continuing insurance policies over real estate and motor vehicles. Creditors need to be notified, particularly if there are no funds currently available for liabilities to be paid.
Locating the Will
When you are ready you should ascertain whether the deceased had a Will. Having a valid in place and a nominated executor makes it much easier (and cheaper) for the deceased person's estate to be dealt with.
Depending on the assets held by the deceased at the time of death, a grant of probate (if there is a Will) or grant of letters of administration (if there is no Will) may be required. Generally if the deceased owned real estate in their own name, had an accommodation bond or licence to occupy at an Aged Care facility, had a significant amount of money in the bank or held shares with significant value, it is likely that the executor will need to apply for a grant of probate or letters of administration.
What is a grant of probate or grant of letters of administration?
An application for a grant of probate involves proving and registering in the Supreme Court of South Australia the last Will of the deceased. In some other situations, and when there is no Will, an application for a grant of letters of administration is required which is a similar but generally more complicated process. When the grant is issued, the executor or administrators role is authenticated by the Court and the executor or administrator is then legally authorised to deal with the estate.
The process of applying to the Court involves providing the original Will to the Supreme Court, declaring the assets and liabilities of the deceased as at the date of death, and providing other information about the deceased and applicant (executor or administrator). Applications are now lodged online through Court SA. Depending on the circumstances further supporting evidence and affidavits may be required to support the application.
Other considerations for executors and administrators
If you are an executor or an administrator of a deceased estate it is important that you act in a timely matter. Generally a period of one year is an acceptable timeframe to administer a deceased estate where there are no complications, but ideally is should take less than 12 months.
To start preparing an application to the Supreme Court, the executor/administrator should gather information that outlines the deceased person's assets and liabilities. For example, collating bank, shareholding and superannuation fund statements, motor vehicle details, council rates notices, water and electricity bills. This is by no means an exhaustive list but it is important for the executor/administrator to gather any relevant documents if they are sorting through the deceased's paper work.
Acting as an executor or administrator can be overwhelming and time consuming but our estate administration specialists are here to guide you every step of the way. We can assist by obtaining the necessary information from asset holders (eg banks, share registries, superannuation funds) to ensure accurate information is provided to the Court.
It is important to note that providing false or misleading information to the Court and deliberately failing to declare estate assets in an application to the Court can have serious consequences. This is a complicated area of law and can be an emotionally difficult time for executors. If you are in any doubt about your responsibilities or what you need to do next, contact a member of our experienced Wills and Estate Planning team who will be able to guide you through the process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.