DECEASED ESTATES

The loss of a loved one is a devastating experience.

Our estate team understand the difficulties of losing a loved one and having to navigate through their estate.

Pogson Cronin Kerr are here to guide and support you through the estate administration process, lessening your burden and making a difficult time a little easier.

Our Estate Solicitors

‘Where do I start?'

Initial steps to take following death:

Locate the deceased’s Will

If the deceased left a Will, generally speaking, a copy will usually be located amongst the personal papers of the deceased.

If a copy cannot be located, enquiries should be made of the law practice who usually acted for the deceased, if those details are known. A solicitor can also reach out to other law firms within the area to see if they hold the deceased’s Will. The original Will is required for the estate administration process.

Once the Will is located - check to see who the nominated Executor is, and whether the deceased specified any wishes regarding their funeral arrangements and burial/cremation. 

Contact a funeral director

The funeral director will make all the necessary funeral arrangements. Although the executor is ultimately responsible for ensuring the deceased’s wishes are carried out in accordance with their Will, funeral arrangements are usually made in consultation with the deceased’s next of kin and family, particularly in the absence of any specific funeral instructions. If there is no Will, the next of kin usually makes the funeral arrangements.

Importantly, following the funeral, the funeral director will usually make an application for the Death Certificate.

Issue of the Death Certificate

Once the Death Certificate issues, it will be provided to the next of kin of the deceased, or the estate executor. The original Death Certificate is essential to commence the estate administration process.

Gather details of assets and liabilities of the deceased

Details of all property and assets owned by the deceased, whether in  their sole name or jointly held, together with any debts (liabilities) will be required to determine how the estate administration will proceed.

Assets include:

  • Primary place of residence, investment properties, leasehold interests, residential accommodation bonds

  • Savings, term deposits, crypto-currency like Bitcoin

  • Shares in companies, both public and private

  • Cars, motorbikes, caravans, trucks

  • For example, artwork , collectibles, antiques

  • Superannuation policies only form part of an estate where there is no nominated beneficiary on the policy.

    When a beneficiary has been nominated on the policy, the benefit is paid directly to that person and does not form part of the estate asset total.

  • Life insurance policies only form part of an estate where there is no nominated beneficiary on the policy.

    When a beneficiary has been nominated on the policy, the benefit is paid directly to that person and does not form part of the estate asset total.

Liabilities include:

  • Outstanding balances on credit cards.

    Delayed payment facilities such as Afterpay and Zip Pay

  • Any outstanding balances owing on primary residence or investment properties

  • Personal loans, business loans, car loans or any other type of loan outstanding

  • Utility bills such as

    • Rates & Water

    • Electricity & Gas

    • Phone & Internet

  • Any unpaid taxes owed to the ATO

Obtain beneficiary details

We will need to know contact information for all beneficiaries named in the deceased’s Will including correct spelling of full name, age, residential address, phone number, email address and bank account details (in the case of a monetary gift).

During the administration process we will contact each beneficiary to make arrangements for their gift under the Will to be received by them.

It is at this stage the executor should contact us regarding the estate administration process and what will be required moving forward.

How the estate is administered will depend on various factors including the value of the estate, whether any joint assets were owned, and whether the deceased left a valid Will.

Estate Administration methods

Survivorship

Generally, the principle of survivorship applies to jointly held assets. If the deceased held property as a joint tenant with another person, such as a husband and wife, the deceased proprietor is removed from Title by way of registration of a Notice of Death. The property is then held in the sole name of the surviving joint tenant.

Similarly, if bank accounts or other assets such are shares are held in joint names, usually the deceased is removed from the joint account and it remains in operation and in full control and ownership of the surviving asset holder.

Grant of Probate

Probate is an Order of the Supreme Court authorising executors to realise the assets of the estate and then to distribute the estate in accordance with the requirements of the Will.

Letters of Administration

Letters of Administration is legal permission from the Court for an appointed administrator to proceed with the duties of estate administration. This process is required when the deceased left no valid Will. Distribution of the estate will be made in accordance with the laws of intestacy.

Estate disputes and family provision claims

On occasions, a dispute may arise regarding the deceased’s Will, particularly between beneficiaries or those related to the deceased who have not benefited under the Will.

A family provision claim challenges Will entitlements in Court. You can make a family provision claim if you're related to the deceased or had a close relationship with them, and show a financial need that the deceased had a moral obligation to meet.

Factors the Court will take into consideration include your overall financial need, your relationship with the deceased, any obligations the deceased may have owed you, and your financial circumstances compared to other beneficiaries.

If you feel you have been inadequately provided for, or have been left out of a Will, contact us for advice on your position.

For advice, guidance and support in dealing with estate administration, get in touch with our deceased estates team.