When a person dies leaving a Will, what should be done?
Firstly someone should know where the Will is. Make sure the Executor knows now. The Executor is responsible for the proper finalisation of the expenses of the estate as well as the distribution to the beneficiaries. The Will may include provisions regarding the deceased’s wishes as to funeral arrangements; donation of parts of the body to named teaching hospitals or universities; sale or transfer of a house; transfer of shares; shipment of items to beneficiaries living out of the state; etc.
The Executor must make a list of all the assets and decide whether it will be necessary to make an application for a Grant of Probate of the Will. Some estates can be finalised by just producing the Will and the Death Certificate when needed. Others require an application to the Supreme Court for a Grant of Probate.
The Executor must close bank accounts, pay the phone bill and other final accounts and generally inform agencies and conclude all business, preferably in writing so there can be no problems later. The Executor can be held liable for errors and omissions in the winding up of an estate. Often an Executor will pass the responsibility to a legal firm, who they know will perform the task in accordance with the law. The legal firm is then responsible for any errors. The law firm carries an insurance policy for your protection if they should make an error.
If the deceased had assets, e.g. bank accounts, life insurance policies, a business, shares, land etc the Executor must:
- Notify beneficiaries of their entitlement;
- Make enquiries to determine the estate’s assets and obtain valuations where necessary;
- Apply for a Grant of Probate;
- Collect the assets and take steps to preserve them;
- Pay debts, funeral expenses etc;
- Lodge final income tax returns (including capital gains tax) covering the period of administration;
- Distribute the assets to the beneficiaries either by selling assets and paying cash or by the transfer of assets;
- In the case of minors, invest their inheritance in authorised trustee investments and make payments for their benefit; and
- Where property is held in trust (i.e. for the life of a beneficiary) keep the property in good repair, and pay
- rates, insurance etc.
This is an application made by the Executor to the Supreme Court of Western Australia. The Executor must satisfy the Supreme Court that the Will is valid. This means:
- that there are no later Wills;
- that when signing the Will the deceased was at least 18 years of age, was of sound mind and not subject to undue influence;
- that the deceased did not marry or divorce after the Will was made; and
- that the Will was signed in the manner required by law.
The application is made by an Application accompanied by an Affidavit and the original Will and Death Certificate are lodged with the Court. If the application is successful the Court gives the Executor a document called a “Probate Parchment” which grants the Executor the right to proceed with executing the Will.
Any or all of the named Executors may make an application for probate. Any Executor who does not wish to apply may either “renounce” or “reserve leave” to apply at any time in the future. This is done by an Affidavit to the Supreme Court.
If the Executors named in the Will have died, one of the beneficiaries may apply for Letters of Administration from the Supreme Court in order to be able to proceed with the Will which still remains valid.
A lawyer will be able to assist by:
- advising as to whether or not the Will is valid and whether all of the estate has been properly disposed of by it;
- advising as to the correct meaning of the Will to ensure that the beneficiaries receive their lawful entitlement;
- if there is no Will or an invalid Will, advising who should apply for Letters of Administration and who is entitled to receive the estate;
- advising you as to your obligations as Executor;
- advising you regarding any claims which may be made against the estate; or any claims that should be made by the estate for example, workers compensation arising from a death;
- taking the necessary steps to prepare an application for a Grant of Probate or Letters of Administration;
- assisting with Tax Returns including Capital Gain Tax and Clearance; and
- giving assistance with the administration of the estate.
This brochure is intended to give a broad outline of the law as at 1 January 2014. It does not cover all events and is in no way a substitute for specific legal advice.
If there is no Will or you can’t find it, the next-of-kin are entitled to apply for Letters of Administration from the Supreme Court of W.A. The law provides a formula as to who is entitled to apply. If you only have a photocopy of the signed will you can still use it but it often costs more to validate.
The next-of-kin become the beneficiaries. The law provides a formula as to who is entitled and in what shares.
In exceptional cases, where there are no relatives, the Government takes the assets.
The Executor can deal with the assets as soon as Probate is granted. However, an Executor cannot safely distribute the assets until 6 months have elapsed from the granting of Probate because, in some cases, members of the family may contest the Will. The Supreme Court has the power to extend this period.