Deceased Estates Lawyers in Newcastle

The administration of a deceased estate is a complex process and one which coincides with what is often a very emotional and stressful period of time. The executor of an estate is entrusted with certain responsibilities and the law requires that these be performed in a strict and specific way. What is needed by the executor during this time is expert advice and a compassionate approach. The service provided by Berryman Partners focuses on these two things.

A guide to the steps in the administration of a deceased estate

The steps in the administration of a deceased estate can be complex. At Berryman Partners, we’re here to assist at every step along the way.

The responsibilites of an executor may include:

  • Attending to funeral arrangements
  • Locating the will of the deceased
  • Determining the assets involved in the estate
  • Determining wether a grant of probate is required
  • Confirming the beneficiaries of the estate
  • Collection of assets
  • Assessing any potential claims and identifying and paying the debts of the deceased
  • Preparing and lodging taxation returns
  • Distributing the assets to the beneficiaries in accordance with the terms of the will

Advice for executors  

We provide a range of services to assist you if you have named as an executor in a Will. As always, our services are provided in a friendly and personal manner and with upmost professionalism.

The role of the executor in administering an estate is a vital one. The executor (sometimes referred to as the “personal representative”) is generally appointed by the testator of a Will and is entrusted with important responsibilities.

It is the duty of the executor to take care of many of the steps in the administration of the estate. The executor has a responsibility at law to administer the estate in accordance with the wishes of the deceased. Included in this is a requirement to discharge all funeral and administration expenses and any debts and liabilities of the estate.

Many of the executor’s tasks and responsibilities should be performed by or with the assistance of a solicitor. There are strict legal requirements that accompany many of the executor’s responsibilities.  These include the order in which debts of the estate are to be discharged and the amount of time that must be waited before the assets can be distributed. The executor will be personally liable to the beneficiaries and any creditors if they fail to administer the estate in accordance with the Will and the general law.

Our experienced solicitors can guide you through the administration process and take the stress out of the legal requirements to ensure you peace of mind. We combine expert advice to help you understand your duties with a friendly and compassionate approach.

One of the major troubles that executors face is how to manage the disputes that can arise within families concerning the deceased’s wishes. Such disputes can aggravate what is already a difficult time for any family and a particularly stressful time for the executor. At Berryman Partners we will assist you as the executor to negotiate and deal with any disputes. We can help you to interpret the wishes of the deceased and ensure that the estate is distributed in a fair manner.

As well as the responsibilities bestowed on an executor, there are certain rights which executors are entitled to and we can help you protect them. If you do not wish to act as executor, you have the right to renounce your appointment. If you choose to take up the appointment, you have the right to recover any expenses you incur in administering the estate.

If you have been named as an executor in an Will, contact us today to let us take the stress out your responsibilities and help you to protect your rights.

Probate

Probate is the process by which the Court determines the validity of a Will and grants authority to the executor to administer the deceased’s estate.
There is no legal requirement to seek probate. In the case of small estates it may be possible to administer the estate without probate. However, a grant of probate is the authority which a bank will usually require before releasing the funds from a deceased’s bank account. Therefore, it may be impossible to distribute the assets of the deceased person without it.

A grant of probate can be very important in protecting the executor. Once probate is obtained, the actions of the executor cannot be challenged (provided the executor is acting in good faith). Probate can also greatly assist in the resolution of Will disputes as it confirms the validity of the deceased’s Will and, therefore, the wishes of the deceased.
A grant of probate can only be issued pursuant to an application to the Supreme Court. Various documents and forms must accompany the application (including the original Will) and we can advise you as to which ones apply in your case. The fees of applying for probate varying according to the size of the estate and the cost is usually borne out of the assets of the estate.

Where there is no Will or there is a problem with the Will

If a person dies without having made a Will, their estate is administered according to the laws of intestacy.

It will be necessary for someone to apply to the Court to obtain Letters of Administration. This is the process by which the Court grants authority to a person to act as the deceased’s personal representative and administer the estate (similar to an executor). This will usually be the deceased’s closest surviving next of kin.

There are certain requirements that must be met on an application for Letters of Administration and various documents must accompany the application. It is also necessary to do a thorough search to ensure that no Will exists. At Berryman Partners we are more than happy to assist with this process.

Where the deceased has not left a Will there is a legal formula which is applied to determine who shares in the estate of the deceased:

  1. The deceased’s spouse (including de facto partner) will take the whole of the estate where there are no children or where the only children are children of the relationship,
  2. Where the deceased has children of a former relationship, the estate is shared between the current spouse and the children,
  3. Where there is no spouse, the estate is divested to the decease's children or surviving next of kin,
  4. Where there is no surviving next of kin, the estate is divested to the State.

Other situations arise where, despite the deceased having left a Will, the Will is invalid or there is a problem with it.

One such situation is where the executor who was named in the Will has died. In this case, it will be necessary for one of the deceased’s next of kin to apply for Letters of Administration with the will annexed to allow them to administer the estate instead. Problems can also arise where a Will was poorly drafted.

It you’re a beneficiary under a Will and you believe there may be a problem with its validity you should seek the advice of a solicitor. Our estate lawyers are experienced in dealing with the myriad of problems that can arise with a Will and we can help to put your mind at ease. Our goal is to protect you and we will work to resolve the issues and minimise the detriment that is suffered. Click on our Wills Disputes and Estate Claims page to find more information.

News

  • 21 Jan 2013

    Your life circumstances change over time. A Will that was prepared for you at one stage of your life may not necessarily best serve your needs today...

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