Deceased Estates

Your deceased estate will consist of all of the assets and debts that you leave in your sole name after your death. Your assets might include any real estate, jewellery, household furniture, pets, cash, and crypto currency. Your debts might include formal and informal loans, credit cards, and store credits, as well as any money you owe to the Australian Taxation Office (although HELP repayments only apply for the current year). The contents of your superannuation, or other trusts, may not form part of your estate.

What is Estate Administration?

The process of winding up and distributing a deceased estate is called estate administration. This involves settling the debts of the estate and delivering the remaining assets of the estate to the proper beneficiaries. It also involves managing any financial and legal issues that arise from the estate. 

What is an Executor?

When you make a will, you need to nominate one or more people to manage the estate administration. This person is known as the executor of the estate. This executor might be a professional such as a solicitor, but it is more commonly a trusted and responsible friend or family member. Your executor can also be the main beneficiary of your estate. For instance, you can leave your whole estate to your spouse, and also make them the sole executor. This allows your spouse to take complete control of your estate. 

What is Probate?

Your executor may need to apply to the Supreme Court of South Australia for a grant of probate. Probate is a legal process that proves the validity of your will and confirms the authority of the executor. The grant will give your executor the legal power to deal with your assets (such as to transfer an asset into their own name or to sell it). 

Applying for probate requires the completion of specific legal forms. It is not technically necessary to instruct a lawyer to prepare those documents, but many people benefit from doing so.

Who Needs a Grant of Probate?

A grant of probate is often required before a third party (such as a bank) will release an asset of your estate. However, not every deceased estate requires a grant of probate. For instance, if your only significant asset is residential property that you owned with someone else as “joint tenants”, the surviving owner automatically becomes the sole owner upon your death. 

We can advise you whether a grant is needed, and in some situations, we can negotiate with banks and other organisations to waive the need for probate.

What Are Letters of Administration? 

If you die without a valid will you are said to have died “intestate”. The law sets out who is authorised to administer your intestate estate, and how the estate is to be divided. To administer an intestate estate a close family member will usually apply to the Supreme Court to obtain letters of administration. 

Sometimes a person leaves a document which is not a valid will, but which contains their plans for what should happen after they die. A document like that might be recognised by a Court as a will, and we can advise you on that.

How Can We Help You?

When a person dies, those left behind will need to handle unique legal and financial matters at an already difficult time. We can assist with the administration to ensure all loose ends are tied up and all obligations attended to. We will provide clear explanations of legal terms and the steps involved in administering and finalising an estate and can provide as much or as little advice and assistance as you request. 

If you need assistance, contact one of our lawyers at [email protected] or call 08 8231 4757 for expert legal advice.