Your Estate Administration Questions
Whether you've suddenly found yourself the executor of a deceased estate or your head is spinning wondering what to do when someone you love dies; we want to make the process of estate administration and estate management as easy and stressfree as possible.
If you can't find what you're looking for email your questions using the link below or book a time to chat over the phone.
Someone has died. What do I do first?
Click the link below for a downloadable, printable list of the first things to do after someone has died.
Do I have to finalise the estate with the lawyer who wrote the will?
No! It's a commonly held belief that you need to finalise an estate with the same lawyer or law firm who holds the will of your loved one.
You can choose any lawyer to work with you to obtain a grant of probate and administer the deceased estate.
It's important as an executor to choose a lawyer YOU connect with and respect as you will be dealing with them a lot over the coming months.
In our experience, many families decide to go with the lawyer who drew up the original will because the will is confusing or poorly written - their justification is the lawyer will be able to talk them through the decision making process. More often than not the lawyer has simply taken instructions from the deceased and doesn't understand the reasoning behind their choices. This can result in a more confused family and a lawyer covering their backside.
If this is your situation call us for a no-obligation chat to help you navigate your options and give you some fresh perspective.
Who pays for the funeral?
The estate of your dead person will pay for any funeral expenses. You can either pay the invoice yourself and keep records to be reimbursed when the estate is administered.
OR you can take the funeral company invoice to your loved one's bank and a bank cheque will be created using funds in their account which you can pay the account with.
Funeral expenses are the only thing that can legally be deducted from the bank account before the grant of probate / letters of administration is issued by the Supreme Court (unless it is a small estate that doesn't require a Grant of Probate / Letters of Administration).
Whose job is it to administer a deceased estate?
If there is a will, the person named as executor in the will is responsible for administering the estate.
If there is no will, this can take more time as there are some other issues to deal with and a more complex process. First, it’s the spouse. If no spouse, it’s the child. If there’s no spouse or child, it’s the parent of the deceased. If there’s no spouse, no child, no parent, it’s a sibling of the deceased.
I've been named an executor but I don't want the job, can I refuse?
Yes, you can resign from your role as executor so long as you have not undertaken any tasks that are considered to be 'managing the estate'.
We can help you complete the ' Renunciation of Probate' process, which confirms with the Supreme Court that you do not wish to be the executor of the will.
The role of executor will generally be appointed to the alternative or backup executor named in your loved one's will.
If there's no suitable alternative the Court may appoint an executor.
You can read more about the role of an executor HERE.
Why is 'obtaining a Grant of Probate / Letters of Administration' a separate service to 'Estate Administration'?
We like to make it really clear that administering a deceased estate is a two part process. Many people are confused when they engage a lawyer to finalise a deceased estate only to find they receive several copies of a signed document and are left to do the administrative heavy lifting on their own. (we get it, if you pay someone to "administer" you expect to receive what's on the box.)
In reality what most people have engaged a lawyer to do is obtain permission from the Supreme Court on their behalf to finalise the estate (through a Grant of Probate if your loved on had a will or Letters of Administration if they didn't have a will) to finalise the estate in accordance with the will or intestacy laws.
The second part of the process is doing the administrative heavy lifting - calling in assets, closing bank accounts, paying creditors etc. Depending on many factors this can take anywhere from a few weeks to several months.
Does every deceased estate require a Grant of Probate / Letters of Administration?
Small estates can be handled without a Grant of Probate, if there has been a will. This means that the executor named in the will can carry out the terms of the will without a Grant of Probate.
And if there’s no will, the person entitled to receive the estate under the intestacy laws is able to sell property without a Grant of Letters of Administration.
Can I continue to use a bank account / credit card?
No. It's illegal to access or use the funds of a person after they're dead.
Even if you held the position of Enduring Power of Attorney in their lifetime or are expected to be a beneficiary of the estate you are unable to continue using the bank account or credit card.
If you have jointly held bank accounts they can still be accessed by the surviving account holder because the surviving account holder is now the sole owner of the bank account.
How soon will I get a death certificate?
Your funeral director will complete the forms required to submit a death certificate but it cannot be lodged until after the burial or cremation of your loved one.
As a general rule we suggest you allow 4-6 weeks for a death certificate.
What happens if there's a mistake on the death certificate?
A death certificate will be submitted to the Supreme Court as part of an application for a Grant Of Probate. It's VERY important all details of the death certificate are correct.
You can find a list of the questions you will be asked on the death certificate form HERE
Who pays the mortgage after someone has died?
If your loved one dies as the sole owner of a property secured by a mortgage, the home loan payments will be frozen until such time the mortgage is paid out or transferred to a named beneficiary. This happens as part of the distribution of the estate.
If your loved one dies as the joint owner of a property secured by a mortgage, the surviving account holder of the home loan is responsible for all payments. As the surviving property owner, you may need to seek financial advice as part of the management of the deceased estate.
Your loved one’s deceased estate may be used to pay off part of the debt.
I know I'm a beneficiary, can I take my inheritance straight away?
No beneficiary has a right to any of the deceased's property until the executor distributes the estate.
If the main beneficiary is a spouse or domestic partner who has no other source of income they may be entitled to social security assistance.
As tempting as it is to jump in and take what you believe will (probably) be gifted to you it's best to hold your horses!
Finalising an estate requires the executor to call in any assets and pay off any debts, including unpaid taxes, mortgages, loans, and legal bills that you may not be aware of.
Do I have to pay the debt of my dead person?
When a person dies, any debts they have are paid off by any money or property they leave behind (their estate). The remaining assets are given to the people nominated in the will (the beneficiaries).
If there is enough money in the estate, the executor pays off the debts owed to those creditors using that money. This may mean selling property to pay debts.
Other people are only responsible for a debt if:
- the debt is secured against an asset that is owned by someone else
- the debt is in joint names with someone else
- someone has guaranteed the debt.
If the deceased had more debts than assets, and the executor believes the estate to be insolvent, it is necessary to deal with the estate in a different way from a normal administration. We can provide more information around this.
Can I sell property before probate?
No.
Yes.
Well, depends on what you mean by “property”.
A grant of probate is needed to deal with certain assets, including houses and land (real property), lots of shares or lots of monies in the bank.
You can enter into contracts to sell real property, houses and land et al, subject to the grant of probate being issued to you.
When do I have to advise organisations of a death?
After a death many people move straight into action mode and want to ring every organisation their loved one ever had contact with.
Whilst it's fine to advise companies of the death you may find that accounts won't be closed unless you have a copy of the death certificate and/or have obtained a Grant of Probate. And in our experience every organisation needs something different (different form, different information, different attachments, different processes). Telling your death story over and over can become pretty overwhelming, pretty fast.
We're not telling you what to do, but you may find it's less emotional and taxing having these conversations a few weeks after the funeral, not in the first few days.
Are there any organisations I should advise immediately?
On your After Death Triage list should be:
- The insurance company - ensure any property or significant assets are fully insured.
- Centrelink - you don't need a death certificate or any other documentation. We recommend you let Centrelink know ASAP to avoid the need to payback any payments.
Can I sell a house before receiving a Grant of Probate?
A Grant of Probate is legally required to finalise a property settlement. However an executor can list and market a property prior to receiving a grant of probate, and make any contracts subject to receiving the grant.
Contact us for more information relating to your personal circumstances.
Who covers any expenses incurred after death?
Many families incur costs in the process of carrying out 'posthumous admin', in particular executors.
This may be anything from paying a final medical or pharmacy bill to paying for new outdoor blinds that get delivered the day of the funeral (true story!).
Keep records and receipts of all expenses and submit them to the executor to be reimbursed before the estate is distributed.
We suggest you regularly and openly communicate with beneficiaries and family members so there are no nasty surprises when it comes time to cover expenses.
What if my person died without a will or an invalid will?
If you die without a will or a valid will, your estate will be dealt with by the South Australian Government, following special laws known as ‘intestacy’. This means the estate will be distributed to certain people based on a formula set out in South Australian intestacy laws.
You may be able to change this formula by working with a lawyer and reaching an agreement with the deceased’s other family members or by making an application to the Supreme Court.
Call us to have a chat about your personal circumstances.
What if I don't like what's written in the will?
If you believe you (or others) have not been adequately provided for in the will you can contest the will in the Supreme Court on the basis of an Inadequate Family Provision Claim.
If you believe the will of your loved one is not legally valid on the basis that they did not have capacity, the document is fraudulent, they were under undue influence, you believe the will is a forgery, or the will maker didn't know about the will. You can challenge the will on these grounds.
We're in the business of avoiding disputes, so we start with conversations and see where things land for all parties - including options for a Deeds of Family Arrangement.
Do I have to do all the administration myself?
Good news is no you don't!
Whilst you can administer an estate on your own, many estates consist of significant numbers of investments, bank accounts, superannuation funds, and/or insurance providers.
Contacting these organisations can be both frustrating and time consuming at a time when you may feel overwhelmed by a raft of other tasks and emotions.
As an executor you have the capacity to nominate an external organisation to handle all your posthumous administration on your behalf. In our experience this speeds up the process of calling in assets, paying off debts and distributing to beneficiaries. It also keeps you at arms length and ensures you're covering all your legal obligations.
What is an 'estate'?
Everything your loved one owns forms part of their estate. This can include:
- real estate
- house contents
- money in bank accounts
- investments
- shares
- cars
- jewellery
- other possessions.
Superannuation does not automatically form part of the estate.
Jointly owned assets are not part of the estate and will automatically pass to the surviving owner.
What is deceased estate administration?
Basically, it’s being asked to sort out someone’s life after their death by managing all the financial, taxation and legal issues, closing bank accounts, selling assets, and making sure all debts are paid and assets accounted for before giving the estate to the beneficiaries under the terms of the will or intestacy laws.
How do I get a nursing home deposit back?
If your loved one has died in a nursing home with a Refundable Accommodation Deposit (RAD) the aged care provider must provide a refund on the balance of the lump sum deposit.
Nursing homes will require a Grant of Probate (if there is a will) or Grant of Letters of Administration (if there is no will) before releasing any funds to the estate.
The purpose of this request for probate is to protect the nursing home, by avoiding the liability that may result in releasing these funds to the wrong person.
Why won't the executor let me access the deceased's home?
Executors have a role to protect all assets and personal effects of the deceased. This means it's their responsibility to ensure nothing is distributed until the estate has been finalised.