A checklist for the Intended Executor and Administrator of a Deceased Estate

When a person dies with a Will, the executor named in the Will is expected to apply to the Supreme Court for a grant of probate so that the executor has the authority to deal with the assets of the deceased. Similarly, when a person dies without a will, a beneficiary of the estate would be expected to apply for letters of administration and be appointed the administrator of the estate and thus have the authority to deal with the assets of the estate. While this is usually required, there may be situations where there is no requirement to apply for a grant of probate or letters of administration.

Whether a grant is needed depends on the composition of the estate. An executor or the intended administrator should seek legal advice before making an application to the Supreme Court for a grant; in certain circumstances, the estate may not need a grant so you can avoid incurring the cost of the application. In Robertson Hayles Lawyers, we offer an initial consultation at a fixed fee. You will be able to obtain advice from an experienced lawyer about whether a grant is required and what the next steps to take in distributing the assets to the beneficiaries.

When making an appointment with a lawyer, the first thing to do is make a list of the estate’s assets so that the lawyer can review the estate’s composition and determine whether a grant is required. Here is a checklist to consider when making the list: –

• The deceased’s interest in real estate

You will need to list all of the real estate owned by the deceased, whether alone or with others. If possible, you should also note how the property is held. This is stated on the title. If the deceased held real estate jointly with another person as “joint tenants”, the interest of the deceased passes to the surviving joint tenant without requiring a grant of probate or letters of administration. In this case, the grant is not required as the real estate falls outside the estate of the deceased.

On the other hand, if the deceased held real estate in the deceased’s sole name or as a “tenant in common” with another person, then an application for a grant of probate or letters of administration would be required so that the executor or administrator has the authority to deal with the deceased’s interest in the real estate. In either event or if you are not sure how the deceased held the property, list all real estate owned by the deceased so that the lawyer can carry out land searches and advise you of the next steps.

• The deceased’s interest in bank accounts

If the deceased held cash in a bank account with a joint account holder, these monies will pass to the joint account holder without requiring a grant of probate or letters of administration to be produced to the bank. Instead of requiring a grant, the Death Certificate should be sufficient for a bank to transfer the funds in the joint account to the surviving joint account holder.

If the bank account is in the deceased’s name alone, then a grant of probate or letters of administration may be required. This will depend on the combined balance of the accounts with that specific bank. If the deceased left only small amounts in the bank accounts, the bank may not require you to produce of a grant of probate or letters of administration. The bank may only need to sight the original Death Certificate original will (if applicable) and have the executor or beneficiary sign a form agreeing to indemnify the bank for any loss it may suffer as a result of the bank releasing the funds without a grant being issued. The requirements vary from bank to bank but often banks will not require a grant when the combined balance of the accounts is less than $20,000.00.

Obtain a list of all bank accounts of the deceased, whether held jointly or in the deceased’s sole name, and the amounts in each account (if known) so that the lawyer can advise whether a grant is likely to be required in your situation.

• The deceased’s vehicle licences

A vehicle licence may be transferred from the deceased’s name to a beneficiary of the estate without having to produce a grant of probate or letters of administration to the Department of Transport. Instead, all that may be required is a statutory declaration from the executor or beneficiary confirming that the transferee is a beneficiary of the estate. Include all vehicles in the list of assets and where possible note whether they are likely to be transferred to a beneficiary or sold to a third party. This will help the lawyer advise you of whether a grant is needed and the next steps to take.

• The deceased’s superannuation funds and insurance policies

Many superannuation funds do not require the grant of probate or letters of administration to be produced in order to release the funds. This because under the terms of the superannuation account, the superannuation funds and insurance payout related to these funds may not fall under the deceased estate. Instead, the trustee of the superannuation funds is entitled to pay the superannuation funds and insurance payout to the beneficiaries nominated by the deceased under that superannuation account and if no beneficiary has been nominated, to the dependents of the deceased. However, under the terms of some superannuation accounts, the superannuation funds and/or insurance payout are to be paid to the estate of the deceased. In this case, a grant issued by the Supreme Court is required for the funds to be released and paid to the beneficiaries named in Will or if there is no Will, to the beneficiaries under the law.

In preparing the list of the estate’s assets include the name of the superannuation fund and/or insurance provider and if possible whether there has been a binding nomination. This information will allow the lawyer to determine whether a grant of probate or letters of administration will be needed in your situation.

• The deceased’s share holdings

If the deceased held shares in a private or public listed company, then a grant of probate or letters of administration would be required in order for the executor or administrator to have the authority to sell or transfer these shares to the beneficiary. Where possible, list the number of shares the deceased held and the name of each entity.

• Any other item of value

This would include jewellery, tools and equipment, art pieces and any other item of value

Once you have completed the list of the estate’s assets with the above checklist in mind, you will have most of the information the lawyer will need to assess whether a grant of probate or letters of administration will be needed in your situation.

Contact us at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiry@robertsonhayles.com for legal advice on whether you are required to apply for a grant and how best to deal with the assets of the deceased.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.