PROBATE & LETTERS OF ADMINISTRATION
The death of a loved one is difficult and emotional, and having to also deal with the administration of an estate is the last thing anyone would want to handle at this time.
Our experienced and compassionate lawyers at FourLion Legal understand this and are there to assist and guide you through this process, whether it is to provide you with advice on deceased estates, apply for a Grant of Probate, handle requisitions by the Court or apply for Letters of Administration.
Probate and Letters of Administration are documents issued by the Court which are the official evidence of the Executor’s or Administrator’s authority to deal with the assets and liabilities of the deceased person or in other words, dealing with the deceased’s estate.
Banks, financial institutions, Landgate, and share registries may refuse to allow any dealings in relation to a person who has passed until the Court has made a grant. The type of application required will depend on whether the person who has passed left a valid Will and if so, the terms of the Will, or whether the person who has passed died without leaving a valid Will.
Dealing with a deceased estate can be a complex and difficult area of the law and our lawyers are here to guide you through this process.
Probate – where there is a Will
When a person dies leaving a Will and appointing an Executor, the Supreme Court has jurisdiction to grant Probate. Probate refers to the process of registering in the Supreme Court the last Will and Testament of a person who has passed and obtaining a Grant of Probate. It is usually the Executor of the Will who will administer the Estate and handle the disposal of their assets and debts.
The process can sometimes be complicated for example, the deceased may have two Wills, where one Will is undated or a Will that is partially invalid. Our experienced Staff are able to assist you with applications for Probate that are out of the ordinary.
Issues can often arise even when a person has left behind a Will. Our lawyers can assist you with the following:
- Defective or missing Wills, where you have a copy
- Where the terms of a Will is uncertain/ understanding a Will
- Where the Executors named in the Will are unable or unwilling to apply for Probate
- Removal of Executors from a Will
- Answering Court requisitions
Letters of Administration – where there is no Will, no original Will or a defective Will/ clause
If someone dies without a Will, or the original Will is missing, or the Executor appointed is deceased or unable to act, an appropriate person may apply to the Court to become the Administrator of the Estate. This person is usually a beneficiary of the estate.
Our team will guide you through the application process and provide you with comprehensive advice as to the administrator’s fiduciary duties.
In some cases, a person may nominate and apply to be an Administrator but this is disputed. Our team can assist you in disputing the nominated Administrator or negotiating with other parties. We can guide you through the process, providing clear information about the processes and giving you practical advice along the way.
Superannuation Death Benefits
A ‘superannuation death benefit’ is a payment made to eligible person(s), which the trustee of the superannuation fund decides after the death of the member. The form of the benefit payment, and who it is paid to, will depend on various factors.
When a person dies, in most cases their super fund will pay their remaining super to the person they have chosen as their nominated beneficiary. Super paid after a person’s death is called a ‘death benefit’. However, sometimes:
- a beneficiary is not nominated; or
- the binding death nomination is defective; or
- the binding death nomination is old and the deceased’s personal circumstances have changed since the was prepared, such as a break down of a relationship; or
- you may want to dispute the trustee’s decision;
Whatever the issue is, our experienced team can assist you with superannuation death benefits applications.
Under superannuation polices, a death benefit dependant may include:
- the deceased’s spouse or de facto spouse;
- a child of the deceased (any age);
- a person in an interdependency relationship with the deceased
Whilst superannuation funds may create the impression that the process is relatively straightforward, especially in cases where there are nominated beneficiaries, as with any insurer, they are not always willing to part ways with their money and sometimes there can be issues that arise that may see a death benefit claim being denied.
If the deceased was totally permanently disabled prior to passing away, in addition to their death benefit, they may be able to make a total permanent disability claim.
Our team of lawyers are well experienced in this area and can assist you in searching for any loss of superannuation, making a death benefit claim, seeking a review of the trustee’s decision and guiding you through the process.
Estate Administration and Accounting
A deceased estate is a trust estate arising on the death of an individual. It may include assets such as real estate, shares, bank deposits and personal possessions. Income on such assets accruing after the date of death (e.g. rent, dividends and interest) also forms part of the deceased estate.
A deceased estate is held in trust from the death of the person until the transfer of the assets to the beneficiaries. There are income tax, capital gains tax and superannuation issues for deceased estate and as part of the duties of the Executor or Administrator, they are to provide an accounting of all assets, liabilities and distributions to the Court and the beneficiaries.
Our team of lawyers work with accountants and tax consultants to ensure a proper accounting of the estate is conducted so as to avoid any issues that may arise that could lead to contentious Court proceedings.
Disputes with Executor/Administrator and Passing of Accounts
If you are a beneficiary of an estate and are not happy with how the estate has been administered, we can provide advice to you on the options available to you to seek the removal of the executor and/or administrator. Alternatively, if you just wish to seek the executor and/or administrator to account to you, then we can negotiate with the executor and/or administrator and if that fails, after full and proper conferral as required by the Rules of the Supreme Court, make an application to the Court for a passing of accounts, where the executor/administrator has to account to the Court of the monies received and spent by the Estate.
Our team of lawyers are able to provide you with advice and guide you through the process so you understand the duties and obligations of an executor/administrator and what options are available to you to resolve the dispute.
Please contact our friendly our team on (08) 9335 6643 or email us at email@example.com if you are looking for assistance with respect a deceased estate.