When a family member or loved one passes away, the last thing you want to think about are the legal steps required to execute their Will. Wills can be a somewhat complex matter to navigate, so familiarising yourself with the process as early as possible, Will save you a lot of stress later.
Before anything, it’s imperative you know what a ‘Grant of Probate’, or put simply, ‘probate’ means – that is, the critical legal step that validates someone’s Will so that the person left in charge (the executor/executrix) can start distributing the estate.
What to do if your parent passes away.
Firstly, you need to locate the Will, establish who the executor/executrix is, and identify if there are any special arrangements or requirements for the funeral.
Funeral costs can normally be paid from the deceased’s estate before probate. You’ll just need to take the invoice, along with the death certificate, a copy of the Will if you are the executor/executrix, stating that the invoice is required to be paid on behalf of the deceased. The bank can then issue a bank cheque made out to the funeral company.
When is probate required?
Assets held solely in the deceased’s name, or with a tenant in common, Will require probate. Assets held in joint tenancy can sometimes be transferred without probate but still require legal paperwork to be filed. Life insurance or superannuation policies can require probate if no beneficiary or a legal representative has been named.
Where minimal assets are involved, banks Will generally release funds with signing of an indemnity form. Each bank has its own threshold, usually somewhere between $20,000 – $50,000.
Executing the Will.
Before you can begin executing the Will, you must enlist the help of a lawyer.
Every Will should have an executor/executrix, if correctly drafted, unless the executor is deceased. In this case, if the Will is deemed valid, you can apply for Letters of Administration with the Will annexed to appoint a new executor. This can create a lot of additional work, so is best avoided if possible. That said, if the Will is drafted correctly, there Will be back up executors/executrix.
Sometimes the named executor of the Will is either unfit or unwilling to carry out their duties and Will need to be replaced by the named backup. The original executor must renounce their role by lodging a Renunciation of Probate form with the Supreme Court of NSW. An Affidavit of Executor Will be required, however, where the executor is unfit to fulfil their duties.
What if there is no Will?
Various formulas are used to establish relationships and next of kin, as well as shares that one is entitled to. This can be a complicated and lengthy process, particularly if there are multiple ex-partners and children from previous relationships, who may have a claim on the estate.
A Will plays a crucial role in the division of a deceased person’s estate after their death, which is why it is vitally important that everyone has one. Otherwise, it can be quite challenging to identify the next of kin, potentially resulting in their estate going to a distant relative they may never have even met.
Professional fees for a Grant of Probate are calculated based on the value of the estate, any additional fees are charged at cost. At Taylor & Scott, we always provide a fully-itemised cost agreement, worked out once the value of the estate has been established.