Deceased Estate Administration
After a person dies, someone needs to look after their property and finalise their financial and legal affairs. This is typically referred to as estate administration. If you have recently lost a loved one and need help administering the estate, our compassionate team will provide guidance and reassurance to help finalise matters while ensuring your duties as executor or administrator are upheld.
Executors and administrators
An executor is the person appointed under a Will to deal with the affairs of somebody who has died.
If the deceased person did not leave a valid Will, the next of kin will usually be responsible for administering the estate and may need to apply to the court for letters of administration. Dying without leaving a Will is referred to as dying intestate. In such cases, the deceased person’s assets are distributed according to a statutory formula determined by the relevant laws in each jurisdiction.
Executors and administrators have significant legal responsibilities and often need to deal with matters that are outside their areas of expertise. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or deal with a family provision claim being made against the estate. We can help you through the legal process, providing advice and guidance to help carry out your duties, and to ensure the estate is administered as smoothly and efficiently as possible.
Probate is a grant made by the Supreme Court that ‘proves’ the Will of a deceased person and authorises the executor to deal with the assets. The requirement to obtain probate generally depends on the size of the estate, the type of assets, and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.
A grant of letters of administration may be required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
Family provision laws have evolved to reflect ‘community standards’ by ensuring those who should morally be provided for receive an adequate inheritance from a family member.
Only eligible persons may make a family provision claim seeking a share or greater share from an estate. Typically, an eligible person includes spouses or former spouses or partners, a deceased’s child or grandchild (of any age) and, in some circumstances, persons who were financially dependent on the deceased. Your lawyer can advise on the relevant eligibility criteria in your jurisdiction.
Strict timeframes apply for making a family provision claim and the applicant must be able to show that the deceased failed to make adequate provision for his or her proper maintenance, education, and advancement in life. When considering such claims, a court will look at a range of factors including the size of the estate, the competing interests and needs of other beneficiaries under the Will or other eligible claimants, and the nature of the relationship between the applicant and deceased.
A family provision claim may well be justified and arise because of errors or omissions in a Will, the failure of a testator to update a Will or a range of other circumstances. Many claims settle out of court through negotiation or mediation between the parties’ legal representatives.
An executor may be required to defend a family provision claim and in doing so has a general duty to uphold the provisions of a Will but should also ensure that estate assets are preserved and not unnecessarily depleted through litigation.
If you believe you have not been adequately provided for under a Will or are the executor of a Will facing a family provision claim, it is important to discuss your circumstances promptly with an experienced lawyer. We have represented and achieved excellent results for many clients with genuine family provision claims and assisted executors who have found themselves in the position of defending such a claim.
Challenging a Will
Other estate disputes concern questions over the validity of a Will due to claims of undue influence, allegations of fraud or forgery, or that the deceased lacked the necessary legal capacity to make the Will. The interpretation of ambiguous terms in a Will, mistakes, or a challenge regarding the appointment of an executor or administrator may also arise.
Administering a deceased estate including any trusts that form part of the estate can be complicated and stressful for executors and administrators. Our estate lawyers have the experience and compassion needed to guide and assist you through this process and to ensure that the best possible outcomes are achieved with the least amount of distress for all parties involved.