What do I do after probate is granted?
Once probate has been granted, the executor must collect the deceased’s assets and take steps to pay the funeral and administration expenses and any debts or taxes – including income tax – the deceased owed. In view of possible liability for capital gains tax, it is important to find out the date and cost of acquisition of the deceased’s assets.
Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to payment of any actual expenses incurred relating to the administration of the estate before other debts are paid.
Once debts have been paid, assets are either distributed according to the terms in the will or they are sold so that money can be divided among the beneficiaries. As executor you might have to contact financial organisations and companies in which the deceased had money invested in order to realise those assets, and become involved in selling various pieces of the deceased’s belongings such as jewellery, a boat or car.
A bank account may need to be opened, in the name of the estate, into which all funds belonging or due to the estate must be deposited and from which debts must be paid.
When and how are the assets distributed?
When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries after the executor has published a notice requiring anybody with a claim against the estate to provide particulars of the claim within a specified period – not less than one month.
The executor must prepare a distribution report and statement for the beneficiaries – given to them when they receive their share of the estate – showing what the assets were, how much money resulted from any sale of assets and what expenses and debts were paid from the proceeds.
Where an executor is applying to the court for commission for his/her administration, detailed accounts have to be filed at the same time with the Probate Registry and all payments and receipts by the executor properly approved.
What if there is no will?
If there is no will there will be no executor. If you are a relative entitled to the whole or part of the estate of the deceased, you can apply to the Probate Registry of the Supreme Court for letters of administration; once granted, these make you a personal representative of the deceased and you then proceed in much the same way as an executor.
There are rules laid down by law about how assets are to be distributed when there is no will. Briefly, a surviving spouse receives the whole estate if there are no children, or all ‘household’ belongings plus the first $200,000 of the estate and half the remainder if there are children. The children divide the other half of the remainder. The spouse may elect to take the matrimonial home as his or her share.
If there is no legal or de facto spouse or direct descendants, the deceased’s parents receive the whole estate, otherwise it goes to brothers and sisters or other close blood relatives. If none of these relatives are alive, the estate goes to the Government.
How can Veritas Legal help me?
- Inform you in detail about the rights and responsibilities of an executor;
- Prepare and help you to complete the forms needed to apply for probate;
- Assist you to identify and collect the deceased’s assets;
- Advise you on the possibility of tax liability;
- Advise you about the legal order in which debts must be paid and the remaining assets distributed;
- Explain the legal order of distribution of the estate in a case where there is no will;
- Assist you with any claims that may be made against you over administration of the estate;
- Help you draw up a statement of assets for realisation and distribution to the beneficiaries.
Managing a deceased’s personal and financial affairs is not easy, especially when loved ones are still grieving. The executor of a Will has many responsibilities - from making funeral arrangements to paying debts and distributing assets.
Veritas Legal has vast experience in preparing Wills and managing estates. Our lawyers’ many years of experience will assist you manage an estate and make the process much less difficult.
Liability is limited by the Solicitors Scheme, approved under the Professional Standards Act 1994 (NSW).
This overview has been prepared for the purposes of rapid information Veritas Legal clients. Its contents should not be used as a basis for advice or formulating decisions.
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