Areas of Practice
If you have suffered the loss of a loved one, the probate and deceased estate administration experts at Nash Allen Williams & Wotton solicitors are here to make the process as stress-free as possible. We have been trusted with this work by generations of families, since the 1950’s.
Where the deceased has left a valid will, Nash Allen Williams & Wotton solicitors will act for the executor (or executors) and deal with the application for the grant of Probate and advise on the distribution of the estate in accordance with the terms of the will.
If the deceased has died without leaving a will (which is called ‘an intestacy’ or ‘dying intestate’), our expert team of solicitors will guide you through the legal and practical issues that are involved when there is no will, such as applying for a grant of Letters of Administration and advise on the distribution of the estate in accordance with the intestacy rules.
If a claim is brought against the estate, rest assured that our solicitors are experienced litigators and will advise the executor or administrator to ensure the interests of the estate are protected.
Deceased Estates with a Valid Will
Administering an estate can be challenging without the right advice. It is important that an executor knows what they are responsible for and what their ‘job’ as executor is:
- Dealing with the remains of the deceased
- Obtaining the original will
- Obtaining the death certificate from the NSW Registry of Births, Deaths and Marriages
- Identifying the deceased’s assets and liabilities and determining the value of their estate
- Applying for a Grant of Probate
- Calling in the assets of the estate
- Settling any outstanding estate debts and expenses – typically this may include income tax, outstanding loans or credit card balances, medical or doctor’s expenses, council rates and other utility bills, funeral and legal costs
- Distributing the remaining assets in accordance with the law and the terms of the will
- Acting in the interest of the estate for the benefit of the beneficiaries
Nash Allen Williams & Wotton’s experienced estate solicitors will talk the executor through every stage of the process using plain English. We will also explain what happens and what needs to be done if any complications arise, if any claims are made against the estate or if the will is contested.
The Supreme Court of NSW’s website has some great information for executors on its Probate page HERE if you want to do some more research.
Deceased Estates without a Will
Someone who passes away without leaving a will is said to have ‘died intestate’. Since there is no will appointing someone as executor, the first question that arises is ‘who should administer the deceased’s estate’?
The deceased’s surviving next of kin will need to make some decisions about who among them are the correct person (or people) to make the application to the Court to administer the intestate estate. The most common applications for a grant of Letters of Administration are made by the deceased’s surviving spouse (or de-facto spouse), because a sole spouse (or de-facto spouse) is entitled to the full estate if the deceased had no children or if the only children of the deceased are children that the deceased and the spouse (or de-facto spouse) had together.
If there is no spouse (or de-facto spouse), then the applicant for Letters of Administration will need to be someone who is entitled to either the whole of the deceased’s estate or a share in it. The people making up the deceased’s family and their relationship to the deceased will dictate to whom a grant of Letters of Administration will be made and also how the intestate estate will be distributed.
If only one (or some) of the persons entitled to share in the estate apply for Letters of Administration, they will need to obtain the consent of all persons who are not applying, or they need to serve notice of their intention to apply on those people.
Chapter 4 of the Succession Act 2006 sets out the order in which eligible relatives will inherit the intestate’s estate. The relevant part can be accessed HERE. It’s not an easy read so advice from one of Nash Allen Williams & Wotton’s expert solicitors should be sought as early as possible, or at least as soon as the family is ready after the deceased’s passing. In summary then, the intestacy rules in NSW operate like this:
- The current spouse (married or de-facto) is entitled to the whole estate unless the deceased has children from earlier relationships;
- If there is no spouse, the estate is divided equally among the deceased’s surviving children or grandchildren;
- In the absence of a spouse or children, the estate is divided amongst the surviving parents of the deceased;
- Grandparents, aunts, uncles, and first cousins make up the remaining order of succession, but only in the absence of the preceding family members; and
- Should no beneficiaries be found in Australia or overseas, the NSW Government will receive the whole estate.
The Supreme Court of NSW’s website also has some great information for next of kin on its Letters of Administration page HERE if you want to do some more research.
Deceased Estates FAQs
What is a Grant of Probate for and Why is it Needed?
A grant of Probate is a document issued by the Supreme Court of NSW to an executor named in a deceased’s will. It is only issued when the Court is satisfied of a number of things – the deceased has passed away; the deceased left assets in NSW; the deceased left a valid will, the will is the last will of the deceased, and the applicant is the executor appointed under that will.
An executor will provide a certified copy of the grant to the various asset holders (such as a bank or building society) so that asset holder can be confident that the executor is the correct person to whom the deceased’s money should be released. It must also be provided to NSW Land Registry Services if the deceased held real estate so it may be put into any beneficiaries’ names or sold.
Letters of Administration serve essentially the same purpose, once granted. The key difference between the two types of grant are that Probate is granted to an executor appointed under a valid will and Letters of Administration are granted to the appropriate applicant where the deceased died without a will.
I am the Executor in the Will of a Deceased Person. What do I Bring to my First Appointment with the Solicitor?
- Your own identification (NSW Drivers Licence or Australian Passport etc);
- The original will or information about where it is;
- Proof of the deceased’s passing (the Medical Certificate of Death issued by the hospital where the deceased passed away or the Certificate of
- Death as issued by NSW Registry of Births, Deaths and Marriages);
- Details of the assets and the liabilities of the estate (the executor should search the deceased’s personal papers for bank account statements; share certificates or dividend statements; funeral plans; insurance policies and superannuation fund membership); and
- Anything else that you think may be relevant or that you want to talk to the solicitor about.
What is the Process for Administering a Deceased Estate?
Estate administration can be complicated by any one of a number of issues that may arise during administration, but a ‘straightforward’ estate will include the following steps:
- The deceased passes away;
- The executor deals with the funeral;
- The executor meets with one of our solicitors and provides the required documents;
- We prepare the executor’s application for Probate and the executor swears the Affidavit of Executor. The application is sent to the Supreme Court of NSW in Sydney (along with the correct filing fee);
- A grant of Probate is issued by the Supreme Court and is posted to our office;
- Certified copies of the grant are provided to asset holders who release the deceased’s funds to our trust account. Any real property held by the deceased may be sold;
- When all assets have been called in, our solicitor will provide the executor with a draft distribution statement outlining:
- All funds received;
- Liabilities/ debts/ costs to be paid;
- Remainder to be paid in accordance with the will
- The executor instructs our solicitor to distribute the estate in accordance with the draft distribution statement and the estate is finalised.
What Assets are Included in the Deceased’s Estate?
A deceased’s estate is made up of all the assets, liabilities, and other property held in the deceased’s sole name on the date of their death. It might include real estate, shares, money in the bank, motor vehicles, as well as household and other personal belongings.
A deceased’s estate does not include assets held jointly with other people or assets held on trust or as a trustee. Also, the proceeds from any life insurance and superannuation accumulated balance are not automatically included in the estate.
Are Debts Paid from a Deceased Estate?
Yes. Any outstanding debts, including funeral expenses, household expenses, a final tax lodgement and the executor’s costs incurred in the administration of the estate will all be paid from the estate. This is generally attended to as soon as the deceased’s assets are released to the estate (for example when the deceased’s bank transferers the balance of the deceased’s bank accounts into the solicitor’s trust account) and is done before any of the assets are distributed to beneficiaries.
How Long Should it Take to Administer an Estate?
As a very general rule of thumb, a typical estate should be wound up and finalised within 12 months from the date of the deceased’s death, and indeed most estates are. Executors (and indeed beneficiaries, too) should know that in some circumstances it is not prudent for an executor to distribute an estate to beneficiaries within 6 months from the date of the deceased’s death (for example where an executor is unsure whether the deceased owed money to any person). Also, in some other circumstances it is not prudent to distribute before the expiration of 12 months from the date of death (for example where the executor has been put on notice of an intended Family Provision Claim by a person who is eligible to make such a claim). Of course, there are some exceptions and important considerations so advice from Nash Allen Williams & Wotton’s experienced solicitors is vital.
Are Life Insurance and Superannuation Included in a Decease Estate?
The proceeds from any life insurance and superannuation are not automatically included in a deceased estate. The deceased’s policy providers should be contacted to advise on how benefits are to be dealt with upon death.
It is beyond the scope of these FAQ’s to explain how superannuation benefits pass upon death, but it is sufficient to say superannuation does not automatically form part of the assets of the deceased’s estate, but it might in certain circumstances. Generally, a superannuation fund will pay the deceased’s superannuation benefits to some or all of the deceased’s dependants, in accordance with the particular superannuation fund’s own rules and the law. The fund may decide to pay the benefit to the deceased’s ‘LPR’ (Legal Personal Representative) – the executor to whom Probate has been granted or the administrator to whom Letters of Administration have been granted.
The estate’s solicitor will usually write to the deceased’s superannuation fund and ask whether the deceased made a ‘binding death nomination’ with them and also how the fund proposes to distribute the benefit.
Who Can ask to See a Copy of the Deceased’s will?
There is quite a broad category of people who are entitled to see a copy of the deceased’s will and they are set out in section 54(2) of the Succession Act 2006. The following are on the list:
- any person named or referred to in the will, whether as a beneficiary or not;
- any person named or referred to in an earlier will as a beneficiary of the deceased person;
- the surviving spouse, de facto partner or issue of the deceased person;
- a parent or guardian of the deceased person; and
- any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate.