The loss of a loved one is a profound and overwhelming experience. Not only do you need to deal with your personal grief and the roller-coaster of emotions, but you may also be responsible for finalising the financial affairs of the deceased.

The most common question we hear from our clients when they have lost their loved one is, “What do I need to do now?”

Such a question, tinged with sadness, is frequently accompanied by a degree of confusion and a feeling of ‘not knowing where to start’.

The checklist below is only intended to help you to understand what you may need to consider doing when you have lost a love one.

The first stage is to consider and understand the financial affairs of the deceased. Locating the following documents will provide you with an understanding of your loved ones affairs:

• The Last Will;
• Bank books,
• cheque accounts;
• Loan documents;
• Visa/Master card statements;
• Life insurance policies;
• Superannuation policies;
• Pension benefits;
• Refundable bond from a nursing home;
• Certificate of Titles if the deceased owned any property;
• Share documentation;
• Unpaid bills;
• Tax returns;

If the person was running their own business

• Trust documents;
• Company documents;
• Tax returns;

Although locating the above documentation can take some time, they will be critical when the time comes for administration and distribution of the Estate. Depending on the size of the Estate, a Grant of Probate may need to be obtained before any distribution of the deceased’s estate.

Should any of the deceased estate be distributed by you without a grant of Probate, you may be personally liable for any loss and therefore, it is important to know your obligations before you distribute any of the estate.

Welden& Coluccio Lawyers, the Estate Specialists, are happy to alleviate some of the burden during this difficult time and can assist you in determining if a Grant of Probate is required while preparing any applications for Court.

“My Great Aunt Edna just died and it seems she has listed me as her sole executor. I’m feeling quite overwhelmed and don’t know where to start.”

When a family member or close friend dies it is normal to feel a whole range of feelings ranging from grief to confusion. The news that you have been named as an executor may come as a surprise (although hopefully not), and will certainly heighten these emotions during what is already a busy time.

As a practicing Wills and Estate Specialist, it is not uncommon for me to receive telephone calls from next of kin on the very day that their beloved has died. At this time I like to reassure them that the important thing to do at this point is to spend time with family and friends, make funeral arrangements and (above all) celebrate the life of their loved one. Once the dust has settled, usually a few weeks down the track, is generally the best time to make an appointment to meet with a solicitor experienced in the management of Wills and Estates to discuss what needs to be done.

When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors – the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.

“What is my job as executor?”

An executor has many important duties when acting on behalf of the estate of the deceased person. They include notifying banks and other organisations identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State).

“I’ve heard of Probate but I don’t really know what this is or what it entails on my behalf.”

A grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person.

There are two types of grants: Grants of Probate and Grants of Letters of Administration.

Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason.

All applications for grants must be in accordance with the Rules of Court which govern who is entitled to a grant and the manner in which the application must be made.

“When will I need to do this?”

Whether a grant is needed will depend on the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who that money should be paid and the grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.

If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them.

A grant will be required if the deceased owned a house in his or her own nameor held an interest with another party as tenant in common. The Lands Titles Registration Office will not transfer land to another person without a grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property.

On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate.

“Wow, now I’m really feeling overwhelmed. What else do I need to know about this process?”

Yes, the process for apply to the Probate Registry seeking a grant of probate or Administration is very complicated and difficult for most lay people. The application may become even more difficult if;

• the validity of the last Will is in question,
• there is uncertainty as to what constitutes the last Will
• the intended last Will has been completed incorrectly (undated or signed wrong).

The list is endless. These problems may create significant delays in dealing with estate assets and finalising the role of the executor. For these reasons, it is always recommended that you speak to a solicitor concerning the Will of a deceased especially if you are named as an executor. Of course the good news is, that in the hands of a Wills and Estate Specialist, this process should seem relatively straightforward from where you stand.

We see them a lot; Lawyers that is, advertising their cut-price Wills on brightly painted sandwich boards plonked on the footpaths of our suburban streets.   There is an old saying that goes something like, ‘if something sounds too good to be true then it probably is.’

Where Wills are concerned you really do get what you pay for.  In fact, the less you pay the more likely it is that you will be bequeathing problems (as opposed to assets).  While I spend a great deal of time warning people about the dangers of DIY Will Kits, I rarely tackle what is nearly as great a concern, that is the lawyer who has no idea how to write a Will.

“But surely all lawyers can write a Will.” I hear you say.

You’d think that Will drafting is something that would be covered in Law 101.   Alas, it is a topic which receives minimal to zero attention in educational institutions across this country.  Fact is; most Law students graduate without any knowledge (let alone experience) in drafting Wills.  Even more frightening is what I am about to suggest, that too many lawyers are not only inexperienced in Estate Planning, but they have no idea that this is the case (or even worse they don’t care).

You see what many people (and quite a few lawyers) don’t realise, is that drafting a Will requires both expertise and time.  A quality Will, that is one that will continue to work hard for you beyond the grave, is one which is only drafted following a lengthy (and detailed) discussion with the client.  Only once this information has been gathered can a strategy be developed, culminating in a tailored (bespoke) document with you, the client, in mind.  Note that there are no short cuts for expediting this process.  This is something to consider when confronted with a lawyer peddling a cheap Will.  Chances are, what you will get is a very brief meeting followed by a cut and paste generic document (created in a single sitting).   In fact, some of these budget Wills are so bad that they are only a small jump up from a DIY Will Kit.

Unfortunately, this issue is not only limited to the drafting of Wills.  At Welden & Coluccio Lawyers we have inherited many estates from lawyers for whom their limited understanding of Probate Law has led to a mismanagement of the file.  In these situations the story is nearly always the same; massive legal fees and a file that has not moved forward to the point where a Grant of Probate is delayed.  This is certainly the case with a number of the files we have inherited, some with Probate not granted after 4 years, one of which we rectified in a mere 6 weeks.  Too often the cost of this incompetence is absorbed by the client, a fact I find hard to swallow, especially because I know the intrinsic value of having an expert in such instances.

Only an ‘expert’ in the field of Estate Planning and Administration has the knowledge and experience to effectively navigate this extremely specialised area of Law in a timely manner whilst keeping costs to a minimum.

So how does one go about finding a good Estate Lawyer?

Like most things, it requires that you the consumer do some research and be prepared to ask some important questions.  Such research may involve making contact with the South Australian Law Society.  Once they know a little about your needs they can offer you a list of lawyers who are specialised in this area of law.  Be prepared to conduct your own internet research.  Look for a solicitor who is professionally active in this capacity.  They may state this explicitly or, they may blog extensively on the topic, present at seminars and conferences or are involved in various professional committees that relate to this area of law.  Big firms don’t always mean better.  Make certain that the actual person who does your Will is the one who has the passion and the experience for this area of Law.  Remember, the larger firms quite often work on volume.  This may mean that they get the junior solicitor (the one with minimal experience) to do the Wills.   Finally, make contact with a few lawyers.  Ask about the process, time-frame and the costs involved.  Avoid choosing a lawyer based on the recommendation of a friend or family member, especially if their matter was different to your own.  Above all, remember, you want to employ the person with the knowledge and experience to do the job effectively the first time.

When dealing with the administration of a deceased estate it seems obvious that you need an actual deceased person!

The ordinary course of events would run as follows;

1. Make a will naming an executor;
2. Die;
3. Executor obtains a Grant of Probate;
4. Executor administers deceased estate.

Simple right?

As a lawyer, experienced in a great variety of Estate matters (many straightforward and quite a few complicated) I can certainly vouch for the fact that this is a predictable pattern which is rarely deviated from.

However, a 2015 change to the Probate Rules, now requires that a ‘Death Certificate’ is filed with an application when seeking a Grant of Probate.   Under normal circumstances this is not an issue; in fact, it is a routine part of the general administration that follows any death.   What many people fail to appreciate is that in order to issue a Death Certificate you need an actual dead body.  Of course you don’t need a great imagination to conjure up a range of situations where providing a corpse may be a challenge.

What happens then, if you don’t have one?

Clearly, the failure or inability to present a ‘Death Certificate’ will present roadblocks when it comes to obtaining a ‘Grant of Probate’.  This grant, declared ceremoniously with a rather attractive red seal, allows for the administration of the estate and a failure to have this seal may significantly delay the sale or transfer of real estate property?

Major headache?  Absolutely. . . although I would liken it more to a migraine.

A recent Western Australian Supreme Court case of Re Paul Allan Weeks dealt with an application by the wife of someone who went missing after boarding Malaysia Airlines flight MH370, to obtain an order from the Court that he had died thereby allowing her to deal with and administer his deceased estate.

It is fundamental to any application for probate to show that the person whose estate would be the subject of the proposed grant is in fact dead. That requirement is most commonly satisfied by the production of a certificate of death. A Certificate of Death, issued by the Registrar of Births, Deaths and Marriages in this State is evidence of the facts stated in it.  Without discovery of the body, a Death Certificate cannot issue unless a Court makes a presumption of death.

A similar situation like this arose a few years ago in South Australia when abalone diver, Peter Clarkson, went missing while diving. Mr Clarkson’s business partner, who had remained on the boat from which Mr Clarkson was diving, reported seeing Mr Clarkson attacked by a shark, but no part of his body was subsequently located.

There are legal differences between an order of a Court declaring death or a presumption of death, sometimes referred to as the 7 year rule (having not seen someone alive for 7 years can lead to an order of presumption of death).  The scope and nature of an application for leave to swear to death is summarised by some old texts as follows;

Where the applicant for a grant cannot swear in his oath to the death of the deceased, and there is no direct evidence of his being dead, but only evidence from which his death may be presumed to have taken place, application must be made for an order giving him leave to swear to the death. Such a presumption may arise: (1) from the disappearance of the presumed deceased at or after a given time, and from the circumstances attending such disappearance, or from his not having been heard of for a prolonged period by those with whom he might reasonably have been expected to communicate; or (2) from his having been on board a ship, which, from its non-arrival in port within a reasonable time, from the absence of tidings of any of those on board, and from other circumstances, is supposed to have been lost at sea; and similarly in the case of a missing or totally destroyed aeroplane.

As you can see, while Probate may be granted in the absence of a Death Certificate it is not achievable without delays and a certain rigmarole.  One does not need to think too hard to appreciate the numerous, similar applications occurring in different countries around the world as a result of the Malaysia Airlines disaster.

A close friend approached me last week concerned that she had been nominated executor in her grandmother’s Will, she was uncertain exactly as to what this would entail.

It is a familiar scenario.  Every day executors are nominated in Wills.  Usually the nominated person is aware of this, sometimes they are not (in which case they are not alerted to this fact until the estate is enacted).  Either way, too often the nominated person is unsure of what the role entails and what Law requires of them.

What is an executor?

An executor is a person that the Will maker has nominated to be in charge of the administration of the estate following their death.

Who can be named as an executor?

The executor usually will be a family member, or alternatively, a trusted advisor such as a solicitor. The latter is always a good option if you know that there might be conflicts within the family since they can act independently.

While it is courteous to appoint an executor having advised the person of your intention, it is not something which the law mandates must occur. This accounts for the reason why many people are only aware of this appointment after a death.

What do I need to do as an executor one the love one has died?

Locating the Will is your first and most important task.  If you are aware that you are the executor from the outset then this is often straightforward.  However, this is not always an easy task and may involve quite a bit of document sorting and sifting to locate the papers.

Most people will store these alongside other important documents.  Often you will be able to locate a copy of the Will and from here you will be directed to a lawyer’s office or a trustee company for the original.   In this case it is the role of the executor to make contact with the holder of the Will, advising of the deceased’s death and requesting confirmation that they do indeed hold the original document.

At this stage it is prudent to leave the original wherever it is for the time being and ask that a couple of “certified” copies of the Will to be sent to you as the executor.

In the event that the deceased or the executor already has possession of the original Will it is imperative that the condition of the document is not altered in any way.

Did you know?  It is critical that a Will is kept in its original condition.  Do not alter the Will in any way.  This includes removing staples (even for the purposes of photocopying), adding paperclips or other fastening devices to the document, or making any written changes or erasures.  Doing any of these things will result in additional time, trouble and expense in administering the estate once an application has to be made to Court for a Grant of Probate.

As soon as possible the executor should take steps to identify and safeguard the assets.  For example a house should be made secure, insurance arrangements should be checked to see that they are adequate, Banks should be advised of the death so they can freeze the accounts, advise Centrelink and re-direct mail.

The executor is responsible for compiling a list of the various assets, including:

• Details of bank accounts;
• Other investments with banks, managed funds or financial institutions;
• Shares;
• Personal effects;
• Cars;
• House property, you will need copies of the council rates;
• Any debts that are owing to the deceased;
• Any debts that the deceased owes to other people.

Once you have gathered this this information it is time to meet with a lawyer to prepare the documentation for a Grant of Probate.  This document is legally required to allow the release any assets belonging to the estate to the nominated beneficiaries.  It is vital that you seek support from a solicitor skilled in this field of law. Too often we hear of difficulties encountered at this stage because the solicitor employed was unfamiliar with the nuances of this area of the Law.

As industry leaders in the field of Wills and Estates Welden & Coluccio Lawyers can assist you to obtain this grant within a realistic time frame so that you can relax and get on with living.