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What Happens When Someone DiesWhen someone dies, the executor nominated in the will is responsible for managing the entire process, from making funeral arrangements to distributing the assets. The will maker appoints who they wish to administer their estate. In some cases, joint executors may be specified in the will. If the person appointed does not want to perform the executor’s duties, they can submit a renunciation. If no executor were appointed in the will, the court would appoint an administrator. There is a legal process to adhere to some crucial steps for the executor to follow, starting with:
Finding The WillTo ensure the deceased’s wishes are carried out, including funeral and burial arrangements, the first step should always be to locate the last valid will of the dead person. It may be found at the deceased person’s home, bank, online or at their lawyer’s office.
Make Funeral ArrangementsThe executor will make arrangements in accordance with the terms of the will. It should state how the deceased person wanted their body to be disposed of, either burial or cremation.
Obtain The Death CertificateGenerally, the funeral director will register the death, and the death certificate can be obtained by applying to the Births, Deaths and Marriages registry.
Determine The Assets And Liabilities Of The EstateThe executor will need to contact the asset holders and creditors and determine their requirements to release the funds.
Establish The Value Of The Deceased Person’s EstateFinding all assets is crucial to ensure that the estate is accurately managed before distribution to beneficiaries such as bank accounts, property and investments. Other valuable items such as jewellery, family heirlooms, art collections and other assets may also be included in the estate.
Obtain a Grant Of ProbateProbate is the document that is issued by the Supreme Court which allows assets to be released from creditors or financial institutions. This legal document provides the executor with authority to access bank accounts, property, and shares to distribute to beneficiaries. The executor will need to apply to the Supreme Court and include:
- The deceased person’s will
- A certified copy of the death certificate
- A list that states the total value of the assets
Pay Outstanding DebtsOnce probate has been granted, funds will be released to the executor. Their responsibility is to finalise all outstanding debts before distributing the assets to beneficiaries; this can include income tax, funeral expenses, estate tax and payment of unpaid bills.
Distribute Assets To BeneficiariesThe executor will distribute all of the estate according to the will and maintain distribution records for future reference.
What Happens If There Is No Will?Dying intestate without leaving a will, means losing the ability to control what happens to assets upon death. There will be no executor or grant of probate; instead, a close relative, such as a spouse or parent, will need to make an application to the court for letters of administration so that they can manage the deceased’s estate. The legal document provides them with the authority to access the accounts of the dead person. Small estates may not need letters of administration as they are of low value. It is also possible to appoint a state trustee to administer on their behalf. Intestacy laws use a formula to calculate the estate distribution amongst the next of kin. Depending on which territory or state you live in Australia, details will vary, as intestacy law falls under state legislation.
Challenging A WillA will must be prepared correctly, signed, written as per the law and witnessed or notarised to be valid. A will can be challenged when an entitled person is left out of the will, believing they are entitled to more than is stated in the deceased’s will. The person can dispute that the will is invalid by claiming that the deceased was unfit at the time, lack of mental capacity, coercion or duress by family members. They could also dispute that they are entitled to a more significant share of the estate under a family provision claim. A claim could be made by a dependent child or the deceased’s spouse. An eligible person can only make a family provision claim. The executor’s role involves defending all challenges or disputes and providing evidence to prove the will’s validity. Ultimately to ensure that the deceased’s wishes are carried out in accordance with their will. The challenge of a will must be made within six months after the person has died. An executor should seek legal advice from their lawyer or solicitor, as a will dispute can be challenging and confusing.
Why You Should Have A WillWills are legal documents that clearly state your wishes regarding the distribution of your estate and care of your children after you have died. When you die without a will, there is no way of knowing what your wishes were. Decisions about your children and your assets may be made by a stranger, like a judge or a state official. The uncertainty can cause unrest amongst the surviving family and provide additional stress, time, and money. There are numerous benefits to preparing a will; some of them include:
- You have control over the distribution of your assets and decide how your estate is divided and to whom. Rather than leave all the assets to the intestacy laws.
- A will can help to ensure that beneficiaries are only people you want to share in your estate. It will help ensure that people you don’t want to receive any of your assets are left out, for example, an estranged relative.
- You are able to nominate a guardian to look after your children after your death. Without a will, the decision may be left to the court.
- Beneficiaries will receive their entitlements in a faster and more efficient manner.
- Charitable donations can be planned, providing estate taxation benefits.
- The probate process can help to avoid fraud and inheritance theft.
- Wills can help to establish a comprehensive record of your personal finance.