When someone dies, the executor or administrator of the estate takes on the responsibility of the deceased estate. This person has a big responsibility, from making funeral arrangements to obtaining a grant from the court, calling in estate funds, and distributing them to the beneficiaries. The executor or administrator must always act in the estate’s best interest, and it can be particularly stressful, draining and daunting, especially for someone acting in this role for the first time. This simple guide should help executors or administrators know where to start if acting in this role.
STEP ONE: Locate the Will
When someone dies, the first thing that should be determined is if there is a Will. An executor should thoroughly look for the Will, whether at the deceased’s home, bank, safe deposit box or stored by their lawyer who prepared their will. Then it needs to be checked who is the appointed executor and are they able and willing to act in this role.
If there is no Will, then you need to determine who is entitled to the estate under the laws of intestacy as per section 14 of the Administration Act 1903 (WA) (“the Act). This will determine whom should be appointed the administrator of the estate. You can read more about intestacy here.
STEP TWO: Funeral Arrangements
A deceased might have funeral insurance, a pre-paid or pre-arranged funeral or their personal wishes might be written in their Will or in a wish list.
If there was no funeral insurance or pre-paid funeral, then the deceased’s bank will release funds for the funeral (this is the only expense the bank will pay until you obtain a court grant).
A couple weeks after the funeral, the death certificate will be produced which allows the executor to start the estate administration process.
STEP THREE: Notifying organisations
The executor should notify any relevant organisations of the deceased passing. This can include but is not limited to Medicare, Centrelink, foreign pension provider, the bank, insurance companies and local council and government departments. But be aware, an executor can notify with a death certificate but cannot deal with the deceased affairs.
STEP FOUR: Acquiring all of the deceased’s assets and liabilities
The executor should then make their best effort to make a list of all the deceased’s assets and liabilities. This can include but not limited to:
- Property – did they have a residential and investment property? Is there a mortgage? Was it solely owned or as tenants in common or joint tenants with another person?
- Refundable Accommodation Deposit (“RAD”) – was the deceased in aged care? Is there a RAD that has to be refunded to the estate?
- Banks – Who did the deceased bank with and what are the details of their accounts?
- Shares – Was there any shares? Are there held in a share portfolio? Is there a financial planner that was managing this for the deceased?
- Motor Vehicles – did the deceased have any cars, motorbikes, campervans or boats?
- Did the deceased have superannuation or life insurance? Is there a nomination?
- Did the deceased have any outstanding debts that need to be paid from the estate?
These are just examples of things the executor needs to look for. It’s important that the executor gathers all assets and any debts of the deceased as they are required for an application of a Grant of Probate or Letters of Administration.
STEP FIVE: Protect the estate assets
Ensure insurance is in place and the insurer is aware of the changed situation. Make sure real estate is locked and no extra keys are ‘out there’. Ensure the garden is regularly watered and cared for. Ensure any motor vehicles are insured and not being used by anyone other then the ultimate beneficiaries. Ensure pets are cared for. Notify banks and destroy bank and credit cards.
STEP SIX: Applying for a Grant of Probate or Letters of Administration
Once assets and liabilities are determined, the executor should be in a position to know whether a grant of probate or letters of administration is required. For example, if the estate only had a bank account under $50,000 then probate may not be required but if the estate has a property, then the executor will definitely need to apply for probate.
Once the executor or administrator has the grant, this then becomes the ticket to deal with the estate as this authorises the executor to do so.
STEP SEVEN: Administering the estate
Every estate varies in terms of what administration is required as every estate has different assets. The administration is determined solely on for example, whether there is property or just bank accounts or if there is superannuation or any collectables that need to be valued. All estate assets need to be dealt with and all debts have to be paid.
As a general rule, all executors should notify the Australian Taxation Office if somebody has passed away and they should also advertise to creditors that somebody has passed even if they think the deceased didn’t owe anyone money. Advertising for creditors is important as the executor can be personally liable for any debts that may arise after estate administration is complete. Even though the executor acts in the best interest of the estate, they also need to protect themselves in their role as executor.
Executors should also consider whether a tax return will be necessary for the individual or for the estate.
STEP EIGHT: Distributing the deceased estate in accordance with the Will or the Act
Lastly, once all the assets and debts have been accounted for, the executor then needs to distribute the estate to the relevant beneficiaries. The executor may know the beneficiaries, or they may need to find them and make enquiries as to where they are. The distribution can either be simple or it might not be if there any disgruntled beneficiaries. It is always recommended that the executor gets legal advice before distributing an estate to make sure they have completed everything.
It’s important to note that this is a very simple and not an in-depth guide to administering an estate. If you are about to start the process of administering an estate and would like some advice or guidance around administering a deceased estate, then contact one of our estate lawyers at (08) 9375 3411.
About the Authors: This article has been co-authored by Ida D’Alonzo and Steven Brown. Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
