Public Trustee often gets callers seeking information or help on the administration of a deceased estate

Some of the most common questions asked include:

• What is Probate, why must I get Probate and how do I get it?
• What are my obligations and duties as the executor named in a will?
• What happens if a person dies without leaving a will?
• Who is responsible for funeral arrangements?

Many private executors are ill equipped to handle complex and demanding administration matters. They and family members are often misinformed, or believe that the will on it's own is all the authority they need to deal with the formal administration of an estate. However, this is not the case. There are other legal requirements to be fulfilled before the administration can proceed and be concluded.

The following information is designed to help you understand some of the steps that must be taken by the executor when someone dies either leaving a will or without leaving a will. These steps can be quite complex. In all but the simplest of matters, the process of winding up a deceased estate requires a good understanding of legal, accounting, taxation and estate administration matters. And an executor must have available the considerable amount of time necessary to undertake all the tasks that are required.

BEING AN EXECUTOR

What is an executor?

An executor is someone nominated in a will to carry out the wishes of that person's will after the person dies. The executor is responsible for the entire administration of an estate until the final distribution of the assets is made to the beneficiaries. During the administration the executor controls and is responsible for all the assets.

What is my role as executor of a will?

In simple terms, your role as executor is to administer the estate within the terms of the will and the relevant laws.

As executor, you must first locate the will and contact beneficiaries as soon as possible. The will may contain funeral instructions or there may be estate matters requiring urgent attention. The deceased's family in consultation with you as executor usually handles funeral arrangements.

Generally, you are responsible to take steps to collect and protect the property of the deceased. This may involve storing valuables such as jewellery, ornaments or paintings, or investing surplus funds. Importantly, all property should be insured. As executor, you are personally liable for the security of all assets.

You must confirm all assets and debts of the estate. This requires writing to financial institutions, government departments, relevant companies, searching records (especially Lands Titles Office), and may also require the preparation of an inventory of household furniture and personal effects. You should notify all relevant government agencies of the death of the deceased to ensure that liabilities do not continue and income such as a pension is stopped.

You should pay any liabilities, satisfy any testamentary gifts and distribute the residuary estate amongst those entitled as directed by the will, generally informing each beneficiary of his or her entitlement by letter.

Executors are required to keep full and accurate records of all transactions from the date of death to the conclusion of the administration.

Do I have to accept appointment as executor?

A person is not legally obliged to accept the appointment of executor as you may be unwilling or unable to undertake all the duties and responsibilities and personal liabilities associated with the administration of a deceased estate.

If an executor chooses not to act then with the consent of the beneficiaries named in the will the executor may request the Public Trustee to undertake the administration of the estate.

PROBATE

What is a Grant of Probate?

The Grant of Probate is the document issued by the Supreme Court of South Australia that legally authorises you as executor to deal in all matters relating to the estate in accordance with the terms of a will and relevant laws. For example, a Grant of Probate is necessary if the deceased:

• owns a home either solely, or as tenants in common.
• owns investments (including monies in banks) in sole name.
• has superannuation benefits that are payable to the estate.

Until the Supreme Court grants probate you do not have legal authority to collect monies, pay debts or distribute any assets to the beneficiaries.

How do I apply for Probate?

An executor can make a personal application with the Supreme Court, but generally will instruct a solicitor to prepare and lodge the application.

The probate application involves the preparation of legal documents that must be lodged with the original will, the death certificate and a detailed statement of assets and liabilities at the Probate Registry. This will lead to the issue of the grant of probate confirming:

• your appointment as executor;
• the stipulated will as the last will of the deceased;
• your authority to undertake all necessary duties and to administer the estate as personal representative of the deceased.

WHEN THERE IS NO WILL

When a person dies without leaving a will, but leaving an estate that requires administration, the estate is then dealt with in accordance with the laws of intestacy. In cases of intestacy the next of kin are required to take the appropriate action for the estate to be administered, which in most cases will require an application to the Supreme Court for Letters of Administration.

Who is entitled to share in the estate?

• If the deceased estate is less than $10,000.00 the spouse is entitled to the whole estate.
• If the value of the estate is greater than $10,000.00 the spouse is entitled to all personal property (including motor vehicle), the first $10,000.00 and half the balance. The children are entitled to the remaining balance in equal shares.
• If a person dies without leaving a spouse or children, then the estate is divisible in degrees: the classifications being as follows:
• Relatives of the first degree: father and mother;
• Relatives of the second degree: brothers and sisters, and issue of deceased brothers and sisters;
• Relatives of third degree: grandparents;
• Relatives of the fourth degree: brothers and or sisters of the parent of the deceased, that is, uncles and/or aunts, and the issue of deceased uncles and aunts.

If you are an executor or involved with an estate that requires formal administration and you need help with the administration, Public Trustee can provide professional assistance. Just contact Public Trustee on 8226 9204. Click on fees and charges to see Public Trustee's charges for these professional services.