The Wilson Haynes ABC of what to do when someone dies
The death of a loved one is hard enough without dealing with the practical side of wrapping up their estate and financial matters.
Wilson Haynes – solicitors, conveyancers and business advisors – has a step-by-step guide to the paperwork and process required to settle an estate.
A – LOCATE THE WILL AND ORDER THE DEATH CERTIFICATE
Firstly, you will need the original, final will and the original death certificate. Usually the funeral home will order the death certificate and provide this to you approximately two weeks after the death of your loved one. Alternatively, the executor can order a death certificate from the Department of Births, Deaths and Marriages for a small fee.
If you are unable to find the will at the deceased’s home try:
- Their bank safety deposit box;
- Their solicitors (if known or local solicitors if unknown);
- The Australian Wills Registry or a Supreme Court registry (not QLD); or
- The Public Trustee in NSW, QLD or any other relevant state.
NB Wilson Haynes – solicitors, conveyancers and business advisors – offers free storage of all important legal documents in our fire-resistant safe custody room to all existing clients.
B – IDENTIFY THE ASSETS & LIABILITIES
The executor will then need to gather in details of all the deceased’s assets and liabilities. To do this the following documents may be required.
- All bank accounts for at least a few months prior to death;
- Income tax returns- for the past three years;
- Superannuation details including any binding deathbenefit nominations;
- Life insurance policies including details of beneficiaries;
- All real estate certificates of title;
- All share and bond certificates;
- Registration papers for all cars, boats and caravans; and
- All mortgage documents
- Any pre or post-nuptial agreements;
- Any loan agreements – including personal loans and mortgages; and
- Any lease agreements – eg real estate or car leases.
- Articles of Association for any corporate identities;
- Shareholders agreements for any corporate identities;
- Partnership agreements for partnerships;
- Income tax returns for the past three years;
- Any business licenses;
- All bank account statements for the past six months prior to death;
- All relevant contracts- including leases, loans and employment agreements; and
- Stock inventories.
- All utility bills;
- All phone bills – mobile and landline;
- Credit card bills;
- Council rate bills; and
- Medical and funeral bills.
C – DETERMINE IF ‘PROBATE’ OR ‘LETTERS OF ADMINISTRATION’ ARE REQUIRED
The next step is determining what application to make to the Supreme Court (if any), either:
- Application for a grant of probate (where there is a valid will); or
- Application for letters of administration (where there is no valid will or no will at all).
These are legal documents obtained from the Supreme Court of the relevant Australian state, which are required by various asset holders prior to the withdrawal of funds, sale of shares or transfer of property. If the deceased owned assets in various states, it may be necessary to apply for grants in multiple states or a resealing of the original grant interstate.
If the estate is small, there may be no legal requirement for a grant of probate or letters of administration. If this is the case, simply ask each asset holder what documents they require to allow release or transfer of the assets.
Despite there being no legal requirement to obtain a grant in some cases, doing so offers the executors protection from personal liability against claims on the estate by creditors or aggrieved beneficiaries made after distribution of assets.
If a grant of probate is required, it should be applied for within six months of the death.
D – CALL IN ASSETS AND DISTRIBUTE ESTATE
Next supply each asset holder with the required documentation (either a certified copy of the grant of probate/letters of administration or a certified copy of the death certificate and will if not using the probate process) and complete their specific documentation to enable the sale, withdrawal or transfer of the asset.
When all assets have been transferred, sold or withdrawn, it is necessary to wait 30 days before paying the liabilities of the estate. The probate (or letters of administration) process requires the executor to advertise a specific notice to any creditors. This requirement ensures personal protection to the executors in the event of any subsequent claim by creditors or aggrieved beneficiaries.
Finally, funds and assets can be distributed in accordance with the deceased’s will or under the laws of intestacy, where there is no valid will.
THE KNOWLEDGE OF AN EXPERIENCED SOLICITOR IS INVALUABLE WHEN MAKING THE DECISION WHETHER TO ACCEPT THE POSITION AND RESPONSIBILITIES OF THE EXECUTOR AND FOR ASSISTANCE WITH MAKING AN APPLICATION FOR PROBATE AND FINALISING A LOVED ONE’S ESTATE.
Wilson Haynes – solicitors, conveyancers and business advisors – offer a FREE 30-minute appointment for all estate and probate matters. To make an appointment call Sean Powell on 07 5536 3055.