Losing a loved one is never easy, and the grieving process can be long and difficult. Notwithstanding, you and your family may be going through a difficult time, there are many tasks that will now need to be completed. Those tasks can range from locating the will, notifying family and friends and making funeral arrangements amongst many other tasks. There is also a legal process to follow depending on if there was a will or not.
The starting point is to establish if the deceased had a final testamentary will. If you and your family are not aware that a will exists, you may have to go searching for one. You must locate the original will, which will need to be in written form and be duly executed. The reason for this is for a will to be considered valid, there are legal requirement for it to be in writing, it must be signed and that signature must be witnessed.
Although, searching within the deceased’s home is a great starting point. However, there are many other places you can search for a will, such as:
You will need to establish if the will is valid. The validity of the will is determined by many factors but mainly by its execution. Has the will been signed by the deceased and witnessed by two independent witnesses at the time of its creation. There are other factors to consider to establish if the will is valid, such as, did the person divorce after the creation of the will or is the original will damaged? If you are unsure if the will is valid or not, a legal representative would be able to assist in determining the validity of a will.
Alternatively, your loved one passed away without creating a will and the process is now unclear and the distribution of their estate will likely become complex and challenging.
You discover you have been appointed as the executor of the estate and will be required to look after the deceased’s assets pursuant to the will. You may also be a joint executor where you and another person are required to work together to administer the estate. However, you can elect not to take on the role of executor. There is an application process to revoke your position as executor.
The executor will likely need to obtain a grant of probate.
There are a number of determining factors to know if you need to obtain probate of the estate. Your legal representative can provide you with advice to understand if the estate meets the requirement or not.
Where no will is found, and therefore an executor has not been appointed, the family will need to appoint someone to act as the administrator. The family will need to make a decision about who is to act in this position to ensure the proper administration of the estate and to ensure that there are no conflicts with the ultimate decisions. An administrator of an estate should be trustworthy, have the ability to manage money well, have the time to administer the estate and be able to act impartially with all members of the family.
Further, you will need to check if the deceased had any arrangements in place for children, dependants or pets; establish if the deceased was an organ or tissue donor with the Australian organ donor register and check if the deceased had any entitlements through veterans or the defence force, amongst many other things.
Probate is a legal process where the Supreme Court of Western Australia is required to validate a deceased person’s will.
The process of probate is an application made to the Supreme Court of Western Australia to obtain a certificate of a grant of probate or letters of administration.
The application process requires a motion, affidavit and statement of assets and liabilities to be completed and lodged at the Supreme Court of Western Australia. In most instances this kind of application would be completed by a law firm.
The lodgement of the application in the Supreme Court of Western Australia is currently $370.
To draft an application to the Supreme Court of Western Australia can cost anywhere between $2,000 - $4,000 + GST if lawyers are engaged, depending on the complexity of the matter.
Receiving a grant of probate or letters of administration gives an executor a legal right to administer the estate of the deceased.
Upon receiving a grant of probate or letters of administration the executor will be required to pay the debts of the estate and transfer the assets of the estate to the named beneficiaries in the will.
Or without a will in place, an administrator would need to distribute the assets of the estate to those who have an interest in the estate pursuant to the relevant legislation.
Superannuation and life insurance do not necessarily fall within the estate. These are typically dealt with separately. However, there are instances where the nominated beneficiary of the fund or life insurance is the legal representative of the will and therefore, the assets will fall within the estate. In that case, those assets will be dealt with as part of the estate.
Nevertheless, the executor will be responsible for notifying the superannuation fund, life insurance company and other relevant entities of the death of the deceased.
The above is a brief summary of some steps that will need to be taken in the days and weeks following the passing of a loved one, but it is not at all an exhaustive list. Putting an estate plan in place today can ensure that this process is as easy as possible for you and your loved ones. Iain and Kerri have explained what simple steps you can take today to protect those you love, from heart aches later. It is simpler than you may think with the help of a law firm.
Contact Iain Freeman or Kerri Evangelista on 9288 6000
