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Wills and Estates

Administration and Probate

If you have been appointed an executor of an estate we can help you with what needs to be done and prepare the documentation necessary to obtain a Grant of Probate or Letters of Administration and distribute the estate.

An executor is responsible for:

  • Locating the original will
  • Making sure appropriate funeral arrangements have been made
  • Ascertaining the assets of the deceased
  • Paying any tax liabilities of the deceased as at the time of death
  • Obtaining a grant of probate, if required
  • Informing beneficiaries of their entitlements
  • Gathering the assets of the deceased
  • Attending to payment of funeral and other estate expenses
  • Paying liabilities of the deceased
  • Protecting and insuring any property owned by the deceased prior to its distribution
  • Distributing specific gifts
  • Transferring the residue of the estate to the residual beneficiaries
  • Ensuring required tax returns are prepared and lodged

I don’t want to take on the role. What can I do?

There is no obligation to accept an appointment in a will as executor.

If you have been appointed executor jointly with another person let them know and they can then apply for probate in their name.

If you are the sole person named in the will as a first choice executor, you need to renounce your right to be the executor. The next person named can take on the role, or alternatively, if there is no-one else, one of the beneficiaries, can apply.

You must not take on any of the executor’s tasks before resigning from the role as executor. The court is reluctant to allow an executor to resign if they have begun to be involved.

Will I be paid if I agree to take on the role of executor?

The executor can:

  • Accept the role without charging
  • Refuse to accept the appointment
  • Reach agreement with all the beneficiaries as to an appropriate commission and enter into a deed to that effect
  • Apply to the Court for the commission to be fixed.

How long will the process take?

This will vary depending on the complexity of the estate. Usually, an estate can be finalised within six months. The will may however contain trusts which the executor may have to manage, sometimes for years. An example is where there are life interests for a surviving spouse to continue to live in the marital home or trusts set up for minor or disabled children.

Dealing with Assets

1. Banks and Building Societies

Depending on the balance of the money in the deceased’s account, the financial institution may

release the money held to the spouse or children without Probate or Letters of Administration being

obtained.

The financial institutions will usually release money to pay funeral accounts prior to Probate or Letters of Administration being granted.

All money held in a joint bank account passes to the survivor.

2. Real Property

If the deceased owned a house or land, or an interest as a tenant in common, it is necessary to obtain a Grant of Probate or Letters of Administration.

If the deceased owned an interest as a joint tenant, a grant is not required for that interest and the surviving joint tenant gets the whole property automatically. The deceased person’s interest does not form part of the estate. The death must however be noted on the titlebefore there can be any further dealing with the property.

3. Motor Vehicles

A Grant of Probate or Letters of Administration is not required to transfer a motor vehicle to a

beneficiary. An application for transfer of ownership form must be lodged with Registration and

Licensing.

There is a transfer fee payable and the beneficiary must sign the declaration stating that the motor vehicle is transferred in terms of the will, to obtain a reduction of stamp duty.

It is the executor’s duty to preserve, protect and administer the estate diligently. If the estate has suffered as a result of the deliberate or negligent actions of the executor, action may be taken against the executor personally to make good any loss suffered by the estate.

Examples are where the executor has profited whilst acting as executor, has used the estate monies to pay his/her personal debts or has failed to follow the directions in a will.

Hardship

A beneficiary does not have the right to any of the deceased’s assets until the executor distributes the estate. Sometimes an executor may make a partial distribution for example to a surviving spouse. Joint bank accounts can avoid hardship to the surviving spouse not having access to funds.

Super Funds

Superannuation is held by a super fund on a member’s behalf. It is the trustee of the super fund who decides what happens to a member’s superannuation balance upon their death. Superannuation is only covered by the will if the superannuation fund trustee decides to pay it into the estate and not directly to a person or people. Many funds allow you to nominate who you want to receive the superannuation when you die but, unless the nomination is binding, the trustees can decide to pay the superannuation to someone else.

At Swan Family Lawyers we are experienced in estate administration and would be pleased to assist you if you have been appointed an executor.

Call us now on 8227 1970 and we will chat with you over the phone, free of charge.

Family law, divorce, wills and estate specialists for Adelaide and South Australia.