Probate & Deceased Estates

We work primarily in the area of estate planning, probate and estate administration and handle numerous deceased estate matters every year. With a highly qualified team of professionals, applying for a grant of probate or letters of administration with us is fast, affordable, and straightforward.

The Legal Process After Someone Dies – the Executor’s Role

When somebody dies, one of the first steps is to obtain a copy of the deceased’s Will. In this document, the testator (will-maker) usually nominates one or more people to act as executors of their estate. Sometimes an executor is appointed to act alone, while in other cases multiple executors may have been appointed to work cooperatively.

The deceased person will usually leave behind assets and debts that will need to be managed and settled. The process of completing this task is referred to as administering a deceased estate.

The executor may need to apply for a grant of probate before dealing with the estate. This requires the preparation and filing of the relevant application and supporting documents with the Supreme Court. The correct process must be followed to ensure there are no requisitions or delays.

Executors must carry out their legal duties in accordance with the relevant legislation and distribute the estate according to the Will. They will usually deal with various third parties and often need to manage issues that are outside their areas of expertise, for example, the sale and transfer of real estate or other assets, the order of payment of debts, or the administration of complex business dealings or trusts.

Executors also have significant discretionary powers. For instance, an executor can overrule the terms of a Will if necessary to settle debts of the estate and any legitimate claims made by family members who were left out of the Will. In doing so, legal advice is essential to ensure that the executor is properly guided and not at risk of any personal liability.

Intestate Estates – When Someone Dies Without a Will

Different laws across Australian jurisdictions set out how a person’s assets will be distributed if they die intestate (without leaving a Will). The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin. This is designed to reflect society’s expectations as to who should benefit from the estate – although in many cases, it may not reflect the deceased person’s real intentions.

If there is no Will, letters of administration will usually need to be granted to an appropriate person before the estate can be administered. This means that a surviving spouse or domestic partner and/or next of kin will need to apply to the Supreme Court for letters of administration. Once granted, the administrator may deal with the estate in the same manner as an executor, following the rules of intestacy in distributing the deceased’s property.

Letters of administration can also be issued if a Will is invalid, or if a Will does not deal with the entirety of a deceased’s property.

How can Clohesy Legal Help?

Applying for probate or letters of administration and distributing an estate can be complex and is often carried out with the assistance of a lawyer. We can provide expert advice and guidance throughout the entire process.

Executors and administrators often need to deal with complex and unfamiliar matters during a time that is already very challenging. They may have to navigate difficult family dynamics, deal with disappointed beneficiaries, and even face disputes or claims against the estate.

In our first meeting, we will take your instructions, articulate the steps ahead, and explain what to expect. We will help you navigate the entire process from identifying assets, gathering information, and preparing the application for probate or letters of administration, to distributing estate assets and everything in between. We communicate in plain language and aim to make this challenging process as seamless as possible.

If you need assistance, contact [email protected] or call 0417 342 972.