Losing a loved one is never easy, however, the process of grief can be simplified.
The legal process once someone dies is the last thing on your mind, however, there are steps that need to be taken that will only loiter if not complete. In order for the closure of a passing to begin, it is best to handle all the post death procedures sooner than later, allowing for life to go on.
Probate (Grant of Representation)
Probate is a legal step that is required before a legal personal representative (also known as Executor/Administrator) can deal with a person’s estate and distribute it to the entitled beneficiaries. It also gives an Executor/Administrator the legal authority to administer a person’s estate.
For some small estates, you may not require a Grant of Representation, however, a legal personal representative will be personally liable by the beneficiaries of the Will, or a person contesting the estate, for any losses incurred as a result of not having a Grant of Representation issued by the Court.
Generally speaking, depending on whether a person died with or without a Will, a legal personal representative will need to apply for either of these grants:-
- Probate – where there is a Will & Executor; or
- Letters of Administration – where there is no Will and no Executor. In this instance, it is usually the deceased’s next of kin, who is entitled to the greatest share of the estate, will be eligible to apply for a Grant of Letters of Administration, such as the person’s spouse/de facto partner, or child.
Process
In order to begin the process of applying for a Grant of Representation, it is necessary for you to obtain various documents/information, including but are not limited to below:
- the original last Will of the deceased (if existent);
- the original death certificate/certified copy of the deceased;
- details of any assets and liabilities held by the deceased in and outside of Australia, excluding any jointly held assets, as they are not estate assets and therefore will automatically transfer into the name of the surviving owner, bypassing the estate;
- when there is a notation of a mental illness on the death certificate, then medical records may be required in support of the deceased’s testamentary capacity at the time of execution of their Will;
- if the person died without a Will, identify who qualifies as the deceased’s next of kin.
Once the above documents/information are collected, you will then need to publish an advertisement on the Victorian Supreme Court’s website notifying of your intention to apply for a Grant of Representation. The application can only be lodged 14 days after the advertisement is published.
Other issues
Superannuation/Life Insurance
Some people may have superannuation and life insurance. Generally, neither superannuation nor life insurance form part of the estate unless the deceased specifically directed them to be called into the estate, or where there is no valid binding nomination in place, the trustees of such funds determine to pay such death benefits to the estate.
If the deceased had nominated the beneficiaries for superannuation/life insurance, by making a valid binding nomination prior to their passing, the balance of their remaining superannuation will be paid to their nominated beneficiary directly, bypassing the estate. However, if there was no valid binding nomination made or only a non-binding nomination, the trustees may exercise discretion in determining to pay such benefits either to the deceased’s estate or to the deceased’s super dependant(s) in whatever proportion and manner they see fit. Nevertheless, this is an asset which executors will still need to consider when administering the deceased’s
estate.
Refundable Accommodation Deposit
If the deceased was living in an aged care facility, it is expected to have the accommodation bond (also known as the refundable accommodation deposit) refunded. Depending on who had financed the initial refundable accommodation deposit, the funds may/may not form part of the estate.
Tax Affairs
Generally, it is the responsibility of an Executor/Administrator to lodge an income tax return on behalf of the Deceased up to the date of death and thereafter to lodge returns on behalf of the estate until the estate is fully administered. An Executor/Administrator can be personally liable if an Executor/Administration fails to finalize the deceased’s and the estate’s tax affairs.
Family Provision Claim
In Victoria, the law allows certain eligible persons to bring legal proceedings against the estate with a view to seeking further provision from the estate. A claim must usually be brought within 6 months from the date of the Grant of Representation being issued. As such, an Executor/ Administrator must protect themselves by deferring distribution of the estate for 6 months, failing which they can be personally liable should a successful claim be made against the estate.
As you can see, there are often numerous complexities that may require legal skill and knowledge to resolve probate issues. In addition, Executors/Administrators are required to comply with legal duties, failing which they can be held personally liable. Regardless of your role, we can assist in complex deceased estate matters and also ensure that your legal duties, in your capacity as Executor/Administrator, are fulfilled.
If you have any questions about Probate or would like to find out how iWills Legal can assist you, please don’t hesitate to contact us on +61 3 9598 9489 or email our team.
Article by Arianna Kim, Senior Associate and Marguerite Leblebjian, Junior Paralegal
