Dealing with a deceased person’s estate [Jun 2007]

People are often unsure of the process to be followed when dealing with a deceased’s estate.  Where a deceased has not left a will, the administration of an estate can be complex and costly.  However, this article provides a brief guideline of the process where the deceased has left a will.

1. The will.

The original will should be held by the firm of solicitors who prepared it.  The first step is to contact the solicitor concerned and advise him or her of the death.  The will can then be checked to ascertain who has been appointed as the executor of the will and the identity of those named as beneficiaries.  The will may contain special directions as to funeral arrangements.

2. Apply for probate.

The executor must appoint a solicitor to act for the estate who will then make an application to the High Court for probate.  Probate is the process whereby the Court determines the authenticity of the will and confirms the authority of the executor named in the will to administer the estate.  Generally, it is not necessary to apply for probate where the assets of the estate are less than $11,000.

The application for probate must be supported by an affidavit sworn by the executor who must swear that he or she is the person named as executor in the will.  He or she must also provide evidence of the death of the deceased (such as producing a copy of the death certificate) and confirm their belief as to the validity of the will.  In addition, the executor must undertake that he or she will carry out the instructions contained in the will in accordance with the law.

3.  Administration of the deceased’s estate.

Once probate has been granted, the executor can proceed to administer the estate.  The executor’s duties include:

·         Making arrangements for the burial or cremation of the deceased;

·         Preparing an inventory of the deceased’s assets;

·         Paying the funeral expenses and any other debts owed by the deceased from the assets of the estate;

·         Paying any gifts or legacies to beneficiaries named in the will;

·         Distributing the remainder of the estate to the beneficiaries; and

·         Keeping a set of accounts recording all financial transactions in relation to the estate.

The terms of every will differ.  For example, there may be provision for a life interest in a particular asset to be granted to a person during that person’s lifetime.  This means that the executor will retain ownership of the asset until the person who has the benefit of the life interest has died.

At that point the asset then becomes part of the “residuary estate” and can be distributed to the remaining beneficiaries.

Conclusion

The administration of an estate may take some months depending on the number and the nature of the assets involved.  The solicitor who has been instructed to administer the estate will be able to provide a more specific timeframe

The contents of this newsletter are of a general nature only. While the information is believed to be correct no responsibility is accepted for its accuracy. Readers are advised to establish the applicability of information in relation to specific circumstances and not to rely solely on the text of this newsletter.

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