The processes and red tape when dealing with a deceased estate can be quite daunting, especially at what is already a very difficult time for you and your loved ones.
At Adelta Legal our Estate team can help you better understand some of the basic aspects of what needs to be done and can guide you in identifying and finalising the deceased’s legal and financial affairs. Please do not hesitate to contact one of our caring and passionate lawyers, Tony Rice, Alison Evenden, Melissa Yule, Mark Jappe or Catherine Schettini to discuss your situation.
When a person passes away the assets owned by that person in their sole name comprise their ‘estate’ which has to be administered according to the person’s will by their Executor, or if they have died without a will then according to the legislation that states who can act as the Administrator and who will inherit.
Adelta Legal provide a flexible and efficient service to assist the Executor or Administrator in undertaking their legal obligations, applying to the Supreme Court for a Grant of Probate or Letters of Administration (where there is no will) collection of assets, distributing and accounting to beneficiaries. We also act for many Executors both interstate and overseas to assist where there are estate assets in South Australia.
Who Is An Executor
An executor is a person or a trustee company who has been chosen by the deceased person, to take control of his or her assets, to pay all debts and to distribute the balance of the assets to the beneficiaries. They are named in the will and must act impartially. An executor can (and often is) also be a beneficiary. An Executor is not obligated to act when the person dies and can decide to renounce their right to act permanently or merely “stand aside” and let the other named executors continue on without them.
Who Is An Administrator
The Administrator is the person appointed by the Supreme Court to take control of the deceased person’s assets and deal with their estate in a similar way to the role of an Executor. If there is no will the person entitled to apply to the Court is laid out in the Administration and Probate Act. If the will nominates an executor who has died or is otherwise unable or unwilling to act in the role of Executor then the person entitled to apply to the Court to be appointed the Administrator is a beneficiary of the will (or creditor) in the order specified in the Supreme Court Probate Rules.
What Are The Duties Of An Executor
An executor has complete personal and legal responsibility for all matters involving the estate. Although every estate is different, the executor’s duties include:
- Making sure that appropriate funeral arrangements have been made.
- Ensuring that the last will of the deceased has been located.
- Protecting and insuring assets.
- Securing valuables and property.
- Informing all beneficiaries of their entitlements.
- Confirming all financial details (including debts) of the estate.
- If there is a dispute between beneficiaries as to who gets what asset, the executor has the final decision which is binding on all beneficiaries.
- Applying for a Grant of Probate (if necessary)
- Collecting the assets of the estate.
- Selling assets and property (if required).
- Preparing a final tax return on behalf of the deceased person (if necessary).
- Paying all debts of the estate.
- Distributing the assets to the beneficiaries.
- Issuing financial statements of account to the beneficiaries.
What Is A Trustee?
When an Executor completes the administration of an estate and there is an ongoing interest or trust, they often then automatically become a Trustee and continues to administer the estate until it can be distributed. An example is where beneficiaries of a will are infants and payment is deferred until they reach 18 years (or older). Other situations requiring trusteeship occur when there is life interest in a property or a charitable fund, or a protective or testamentary trust is set up. Sometimes a separate person is appointed to be the Trustee of the ongoing trust and the Executor then hands over to that Trustee to continue when the role of Executor has been completed.
One responsibility of a Trustee is to invest the trust monies. The Trustee Act clearly defines the obligations of a Trustee as to investments and gives the legal framework for the ongoing responsibilities of Trustees in addition to any rights granted by the Will. A Trustee must act prudently when investing monies and regularly review the investments.
Because the Trustee is often required to manage assets over a long period, the need to seek financial advice is essential.
It is prudent to have a “substitute” Executor named in the will to take over if the Executor dies before you or before the assets can be distributed. If not then either an Administrator is appointed by the Court (if the named Executor has died before you and there is no replacement nominated) or the Executor’s own Executor may be able to apply to the Court to become the Executor for the purposes of completing the administration of the estate.
What Is Probate
A Grant of Probate is the official document issued by the Supreme Court, which confirms that:
- The will is the last will of the deceased person.
- It is a valid legal document.
- The executor named in the will is authorised to administer the estate.
- All assets and liabilities of the deceased have been disclosed to the Court.
The Grant of Probate gives the executor the necessary legal authority to take control of the estate assets. It must be produced for all dealings with government and financial institutions, companies, share registries and others with an interest in the estate assets. However for some small estates with no real estate, it may be possible for the estate to be administered without a Grant of Probate. It is up to the financial institutions concerned as to whether they will require a Grant of Probate. An application is made to the Court by the executor. Most executors seek legal assistance in the preparation of these documents.
Executors should seek initial advice to find out the extent of their obligations in the circumstances, the requirements for handling the assets of the estate and the legal formalities to be completed. Adelta Legal has been providing specialist estate administration services to executors for many years. And work with Executors in a flexible way so that they can undertake some of the role themselves if they wish. Our charges are based on time spent and do not depend on the value of the assets. These costs are an estate expense. We are one of the few firms remaining in Adelaide which charge the basic Supreme Court Scale of Charges (rather than a higher hourly rate).