What about the paperwork?
By James Murray
When a loved one passes away we have so much to deal with and the last thing that we want to do is worry about “the paperwork”. Unfortunately, there is much to be done and most of us do not have any idea where to start.
If there is a Will in place the Executor can be facing a daunting task. An Executor has a legal obligation to administer the Estate and carry out a number of duties to ensure the wishes in the Will are carried out.
Duties include the following:
- Obtain a copy of the deceased’s death certificate
- Obtain a copy of the last Will of the deceased
- Open a bank account in the name of deceased’s Estate
- Ascertain all of the assets and liabilities of the deceased
- Make applications to the court for a grant of probate or representation if required
- Dealing with the assets of the Estate. Once the assets of the Estate of the deceased have been ascertained the Executor will then determine whether the assets are to be distributed directly to the beneficiaries, or are to be sold and the proceeds distributed
- Attending to the tax affairs of the deceased
- Paying any debts of the deceased
If there is no Will in place then Letters of Administration may be needed to appoint a family member (usually the next of kin) to finalise the estate left behind. An Executor has significant obligations, personal risks and potential liabilities. Executors owe a duty of care to the beneficiaries of the Estate to exercise the same degree of care as would an ordinary prudent business person. The Executor could be personally liable for a breach of this duty. Given the significant legal obligations and responsibilities it is imperative that you get the right advice as early as possible.
The term Probate refers to the process of proving in the Supreme Court that the Will is valid and is in fact the last Will of the deceased. Probate may or may not be needed depending on the assets held in the Estate.
It is very important to check with the organisation that you are seeking to obtain Estate funds from as to whether or not they require a Grant of Probate.
A Grant of Probate does however provide protection for the Executor against later claims that the Will was not the last will of the deceased. For this reason, we often recommend that a Grant of Probate is applied for and obtained.