When someone dies leaving a Will, the Executor named in the Will must take certain steps to administer the deceased’s estate. This will usually include identifying the deceased’s assets and liabilities, calling in all assets owned by the deceased, paying the debts of the deceased/estate and distributing the estate in accordance with the Will.
Property that is jointly owned with another does not form part of the deceased’s estate, but rather is transferred to the surviving party. If the deceased jointly owned assets with another (i.e. a bank account in joint names), then ordinarily producing the deceased’s Death Certificate to asset holder will be enough to have the asset transferred into the sole name of the surviving party. However, in respect to real estate owned as joint tenants, this will involve the lodgement of a Notice of Death with the Land Registry Services. There are lodgement fees to do this. If there is a mortgage on the property, it is recommended that you discuss the transfer directly with the financial institution.
If the deceased owned limited assets, then it is most likely that the Executor will only need produce the Death Certificate to the asset holder to access the assets. However, this will be subject to the policies of that asset holder.
If the deceased owned significant assets (i.e. real estate, shares, large amount of money in bank accounts), the executor will need to apply for a Grant of Probate from the Supreme Court. This involves publishing notices and documents being lodged with the Court. Once the Court issues the grant, it is only then that the Executor is authorised to deal with the deceased’s estate in accordance with the Will. This will usually involve calling in assets, paying the debts of the deceased/estate and distributing the estate in accordance with the Will. This process can be quite complicated and therefore it is recommended that you seek legal assistance.
What happens if the deceased did not leave a will, who deals with the estate?
The Successions Act 2006 (NSW) (‘the Act’) identifies a list of people who are entitled to the deceased’s estate when the deceased dies without a Will (also known as dying intestate). Please refer to our information sheet https://catherinehenrylawyers.com.au/resource/happens-die-intestate/ for further information as to beneficiaries entitlements when someone dies interstate.
Ordinarily, the person who deals with the deceased’s estate (similar to that of an Executor) is called an Administrator and this person is usually someone that is to receive a benefit from the deceased’s estate as per the Act.
The same procedure applies in that the Administrator will need to identify the deceased’s assets and liabilities, call in the assets of the deceased, pay the debts of the deceased and distribute the estate to the beneficiaries as per the Act.
If the deceased owned limited assets, then usually the asset holder will require the production of the deceased’s Death Certificate and identification of the Beneficiary/Administrator in order to establish entitlement to access the assets. However, this will also be subject to the policies of the asset holder.
If the deceased owned significant assets (i.e. real estate, shares, large amount of money in bank accounts), then the person who is to be appointed as the Administrator must apply to the Supreme Court for a Grant of Administration. This is a similar process to that of applying for a Grant of Probate as addressed above. However, there are additional steps that must be taken by the Administrator in comparison to what is required for probate. Once the Court issues a Grant of Administration, it is only then that the Administrator is authorised to deal with the deceased’s estate in accordance with the beneficiaries’ entitlements as outlined in the Act. Once again, this will involve calling in the assets, paying the estate’s debts and distributing the estate in accordance with the Act. This process can be quite complicated and therefore it is recommended that you seek legal assistance.
Whether you are required to apply for a Grant of Probate or Administration, the Executor/Administrator must do so within six months from the date of death, otherwise you will need to explain to the Court the reason for delay.
If you are an Executor or Administrator and require assistance with an estate, contact our Wills and Estates team on 02 4929 3995 or at info@catherinehenrylawyers.com.au.
