Quick Access: Deceased Estate Making a Will Power of Attorney
Someone you love has passed away
Did he or she leave behind an estate?
How to begin dealing with a deceased estate?
If a person passes away with a Will, the executor named on the Will would be the person responsible for managing, distributing and finalising the deceased person’s estate.
PROBATE
In most cases, the executor will need to apply for a grant of Probate at the Supreme Court of the state or territory. In some cases this is not compulsory, however a grant of Probate will offer the executor a piece of mind as the Probate is a proof that the Supreme Court accepts that your role as the executor is valid so the institutes and organisations releasing fund to you can be assured that they are protected against future claims by those who later try to challenge your appointment as the executor.
The costs associated with the application of a Probate is generally reimbursed by the estate.
LETTERS OF ADMINISTRATION
If the person dies without a will (known as “dying intestate”), the next of kin, such as a spouse, takes on the role of administering the deceased’s estate. They can’t do this until they receive a grant of Letters of Administration on intestacy from the Supreme Court.
Letters of administration show that the court has examined the relevant documents and is satisfied that the person named in the grant is authorised to administer the estate.
Note: If there is no will, the assets go to the next of kin according to schedule in the Succession Act 1981.
BEFORE THE ESTATE IS DISTRIBUTED
Once you have the Grant of Probate or Letters of Administration, you will need to gather in all of the deceased's assets, this could include closing bank accounts, collecting any death insurance and/or life insurance payouts, selling or transferring real estate and shares to the beneficiaries.
You will also need to discharge all debts owed by the deceased and ensure that all tax affairs are up to date for the entire lifetime of the deceased. Any tax owing should be paid before the estate is distributed.
Need to make a will?
Make sure that your loved ones are looked after.
Why do I need a will?
A will is a legal document that sets out how you want the things you own to be distributed after your death.
If you die without a will (this is known as “dying intestate”), your estate (i.e. everything you left behind including money, real estate, shares, etc.) will be distributed according to the intestacy rules which might mean:
you do not have a say in how your estate is distributed
you cannot appoint a particular person as the guardian of your children, and the guardian appointed may not be someone you trust
you are unable to appoint someone you trust to handle the distribution
it can cause delay, complication or extra costs in distribution, this means your loved ones could be waiting longer before they can receive the distribution
in addition to the bereavement suffered by your family and loved ones, they may also be facing unnecessary stress and burden caused by the delay, complication or extra costs caused by your dying intestate.
How long will my Will last?
Any adult with mental capacity can make a will. Once made, your will lasts until you die unless you make a new one, change it or revoke it.
Certain change in circumstances, such as a marriage, divorce, or passing of a spouse may also void the Will. Please obtain legal advice about your situation.
What should I bring to my appointment?
In the initial appointment, we will discuss how you would like the estate to be distributed. Generally speaking, you will need to provide following information:
Your full name and address
Who would be your executor (the person distributing the estate on your behalf after you die), his/her full name and address
Who you would like to gift your things to, their full names and addresses
any other particulars that you may want to include in the Will
Power of Attorney
Authorising other people to do things or make decisions
on your behalf when you are unable to.
What is a Power of Attorney?
A Power of Attorney is a formal legal document authorising another person to make personal and/or financial decisions on your behalf.
There are two types of Power of Attorney:
General Power of Attorney; and
Enduring Power of Attorney.
General Power of Attorney is commonly used to authorise someone else to manage your affairs when you are away for a specific period of time.
Enduring Power of Attorney is usually used as part of your future planning, as it allows someone you trust to manage your affairs and make decisions on your behalf if you become too ill or loses capacity (for example, if you have dementia).
Can I change or revoke the Power of Attorney?
Yes, if you need to change or cancel a Power of Attorney, you can revoke it provided that you have mental capacity. However, you are required to notify your attorney (the authorised person) of the revocation.
How long will a Power of Attorney Last?
You can specify when your Power of Attorney comes into effect.
A General Power of Attorney will last until it is revoked or until you lose mental capacity or die.
On the other hand, unless there is a limitation on an Enduring Power of Attorney, it usually continues until you revoke it or you pass away.