Thanks for your enquiry. Our will disputes lawyers will be in touch within the next business day to assist with your enquiry. If your matter is urgent, please call us on 1300 580 413.
Checklist
Tasks
Original will
Obtain a copy of the will and satisfy yourself that the original is held securely and safely, for example, in a solicitor’s safe custody facility.
Funeral arrangements
Familiarise yourself with the provisions of the will relating to burial or cremation. Liaise with family members to arrange the event at an agreed time.
Funeral director
In consultation with family, appoint a funeral director to perform the desired arrangements.
Capacity
Consider whether there are any potential issues of legal capacity and if so, seek evidence from the testator’s medical practitioner that he or she had capacity to make the will on the date it was made.
Execution
Consider the signing of the will to ensure that on the face of it there were two independent persons present who signed as witnesses in the testator’s presence.
Probate
Consider whether Probate of the will is likely to be required.
Family provision
Consider whether any family members – for example, children or step-children – have been omitted from benefits under the will.
Family provision
Consider whether any family members – for example, children or step-children – have been omitted from benefits under the will.
Inventory
Make an inventory of all estate assets to consider what steps need to be taken to collect and preserve them. This will also assist in determining whether a grant of probate will be needed.
Copy of will
Ensure copies of the will are provided to all persons named in the will as a beneficiary. The following are also entitled to a copy on request: a beneficiary under a former will, the deceased’s spouse, children, stepchildren and parents. In some cases a former spouse and some relatives.
Insurance
Satisfy yourself that all assets such as homes, boats and cars have current and adequate insurance.
Security
Ensure that items of monetary or sentimental value such as jewellery, photographs, paintings etc. are adequately stored and secured.
Consider appointment
An executor does not have to accept the role however if they propose to decline, this should be done at the earliest available opportunity
Obtain Death Certificate
Often this is sourced for the deceased’s family by the funeral director..
Appoint a Solicitor
In most cases, a solicitor should be appointed. If probate or letters of administration are required, you will definitely need a solicitor. The solicitor can do as much or as little of the administration as you prefer.
Housekeeping
There are a variety of “housekeeping” duties that should be attended to as soon as convenient: redirect mail; cancel drivers licence; cancel Centrelink payments; claim medical expenses from Medicare and private health fund; and cancel health insurance and claim refund.
During the case assessment process, you stated that you need to know the first steps to take in regards to executor/administration. The first steps you take should cover all of the following:-
We asked if you'd prefer to conduct all aspects of the estate yourself. An executor may choose to do so everything themselves or instruct a solicitor take the necessary steps at his or her direction, including notifying and communicating with the beneficiaries as to their entitlements and the progress of the administration of the estate.
You stated the approximate value of the estate is between
Make an inventory of all estate assets to consider what steps need to be taken to collect and preserve them. This will also assist in determining whether a grant of probate will be needed.
We asked about what the estate consist of, you checked that there's a joint bank account. Any joint accounts can continue to be operated by the surviving account holder or closed so that the survivor receives the entire proceeds.
You also checked that there's a joint bank account. Any joint accounts can continue to be operated by the surviving account holder or closed so that the survivor receives the entire proceeds.
We asked about what the estate consist of, you checked that there's bank funds. Most banks will release funds from the deceased’s account for the funeral, prior to probate of the will.
Accounts in the deceased’s sole name with balances exceeding around $20,000 (this threshold figure varies from bank to bank) are usually only able to be released after probate to an executor on production of a copy of the Supreme Court probate.
To an executor on production of a copy of the Supreme Court probate. If the bank requires a grant of probate prior to releasing funds, there are some funeral directors who will wait until probate has been issued before being paid. They may charge a fee for waiting to receive payment.
You also checked that there's bank funds. Most banks will release funds from the deceased’s account for the funeral, prior to probate of the will.
Accounts in the deceased’s sole name with balances exceeding around $20,000 (this threshold figure varies from bank to bank) are usually only able to be released after probate to an executor on production of a copy of the Supreme Court probate.
To an executor on production of a copy of the Supreme Court probate. If the bank requires a grant of probate prior to releasing funds, there are some funeral directors who will wait until probate has been issued before being paid. They may charge a fee for waiting to receive payment.
We asked about what the estate consist of, you checked that there's shares. The deceased’s shares can be sold through a stockbroker and the proceeds paid to the estate.
Publicly listed companies each have their own paperwork for transmission of the shares into the name of the executor, if for example, it is desired to maintain the investment. A Grant of Probate will usually be necessary.
You also checked that there's shares. The deceased’s shares can be sold through a stockbroker and the proceeds paid to the estate.
Publicly listed companies each have their own paperwork for transmission of the shares into the name of the executor, if for example, it is desired to maintain the investment. A Grant of Probate will usually be necessary.
We asked about what the estate consist of, you checked that there's term deposits. Term deposits should normally be left to run the course of their investment to maximise interest return.
However if the bank will permit it, they may be terminated early to provide cash if the deceased’s surviving family is in urgent need.
You also checked that there's term deposits. Term deposits should normally be left to run the course of their investment to maximise interest return.
However if the bank will permit it, they may be terminated early to provide cash if the deceased’s surviving family is in urgent need.
We asked about what the estate consist of, you checked that there's personal loan debts. Debit balances of unsecured personal loans are paid from the estate’s cash.
If a loan is secured over an asset that is gifted to a particular beneficiary, double check the will to determine whether the gift is made subject to the beneficiary taking responsibility for repayment of the loan attaching to it.
You also checked that there's personal loan debts. Debit balances of unsecured personal loans are paid from the estate’s cash.
If a loan is secured over an asset that is gifted to a particular beneficiary, double check the will to determine whether the gift is made subject to the beneficiary taking responsibility for repayment of the loan attaching to it.
We asked about what the estate consist of, you checked that there's Private Company or Companies. Business accounts will continue to operate, if in a company name. If there is no specific provision in the Will in relation to a company, the shares in the company that are in the deceased's personal name are transmitted according to any direction in the Will.
In the absence of any such direction, they are transmitted in the same manner as the residue of his or her estate. Legal assistance should be sought to effect these measures.
You also checked that there's Private Company or Companies. Business accounts will continue to operate, if in a company name. If there is no specific provision in the Will in relation to a company, the shares in the company that are in the deceased's personal name are transmitted according to any direction in the Will.
In the absence of any such direction, they are transmitted in the same manner as the residue of his or her estate. Legal assistance should be sought to effect these measures.
We asked about what the estate consist of, you checked that there's an investment real estate. If a property is required to be sold, the initial step is to have the property transmitted into the name of the executor “as personal representative”.
Once a buyer is found at a satisfactory price, the executor signs a contract of sale in that capacity to the third party buyer. The transfer may trigger Capital Gains Tax. Advice and an estimate of the tax payable should be obtained from an accountant.
An executor may elect to obtain a professional valuation to be satisfied of the price at which the property should be marketed for sale. It the property is to be transferred to a beneficiary “in specie”, a valuation may be necessary for CGT purposes or if the transfer is made pursuant to, for example, an equal division of the entire estate among several beneficiaries.
You also checked that there's an investment real estate. If a property is required to be sold, the initial step is to have the property transmitted into the name of the executor “as personal representative”.
Once a buyer is found at a satisfactory price, the executor signs a contract of sale in that capacity to the third party buyer. The transfer may trigger Capital Gains Tax. Advice and an estimate of the tax payable should be obtained from an accountant.
An executor may elect to obtain a professional valuation to be satisfied of the price at which the property should be marketed for sale. It the property is to be transferred to a beneficiary “in specie”, a valuation may be necessary for CGT purposes or if the transfer is made pursuant to, for example, an equal division of the entire estate among several beneficiaries.
We asked about what the estate consist of, you checked that there's a family home. For a home owned by the deceased eg with a spouse as joint tenants, registration of the interest of the surviving co-owner as sole proprietor is a relatively simple procedure that can be performed by a solicitor.
If the home is required to be sold, usually the property is transmitted into the name of the executor “as personal representative”.
Once a buyer is found at a satisfactory price, the executor signs a contract of sale in that capacity to the third party buyer.
The transfer will usually not trigger Capital Gains Tax. Advice should be obtained from an accountant.
You also checked that there's a family home. For a home owned by the deceased eg with a spouse as joint tenants, registration of the interest of the surviving co-owner as sole proprietor is a relatively simple procedure that can be performed by a solicitor.
If the home is required to be sold, usually the property is transmitted into the name of the executor “as personal representative”.
Once a buyer is found at a satisfactory price, the executor signs a contract of sale in that capacity to the third party buyer.
The transfer will usually not trigger Capital Gains Tax. Advice should be obtained from an accountant.
We asked about what the estate consist of, you checked that there's an operating business. For businesses owned or partly owned by the deceased in his or her personal name (as distinct from company ownership), look for any specific provisions in the Will relating to it. In the absence of any specific provisions it will be up to the executor to assume control and make day-to-day decisions.
Legal and accounting advice should be sought. Operation of the business bank accounts may prove problematical. If there are other business owners, the executor will not be required to assume control.
In such a case, the executor’s preference would usually be to effect the sale of the deceased’s interest to the remaining owners; and/or obtain a release of the estate from any debt obligations arising from the business.
You also checked that there's an operating business. For businesses owned or partly owned by the deceased in his or her personal name (as distinct from company ownership), look for any specific provisions in the Will relating to it. In the absence of any specific provisions it will be up to the executor to assume control and make day-to-day decisions.
Legal and accounting advice should be sought. Operation of the business bank accounts may prove problematical. If there are other business owners, the executor will not be required to assume control.
In such a case, the executor’s preference would usually be to effect the sale of the deceased’s interest to the remaining owners; and/or obtain a release of the estate from any debt obligations arising from the business.
