My loved one has passed away. What do I need to do to attend to his/her affairs?
When a person passes away they die either with a Will in place (testate) or without a Will in place (intestate). Should a person die testate, it is the responsibility of the Executor of the Will to handle all the affairs on behalf of the deceased person. Should a person die intestate, the closest family member of the deceased person has several options:
- they can administer the estate
- they can request the Public Trustee to administer the estate
- they can request a solicitor to administer the estate
If you are unsure of your responsibilities after having read the information below, you should seek further assistance by either ringing the Public Trustee or a legal advisor.
What is an Estate?
When a person dies, everything he or she owns forms the ‘estate’. The estate could comprise of real estate, house contents, bank accounts, investments, shares, motor vehicles, jewellery and other possessions.
What is an Executor?
An executor is the person or trustee organisation you choose to carry out the instructions in your Will. The executor is responsible for the entire administration of an estate, until the final distribution of assets is made to the beneficiaries.
What if there’s no Will?
If a person dies without making a Will, that person is said to die ‘intestate’. The person administering the estate of an intestate must take direction from legislation for the purpose of the distribution of the assets, at the conclusion of the administration process. Additionally, Letters of Administration must be obtained from the Supreme Court (Probate if there is a Will), to authorise the administrator of the estate to deal with all matters relating to the deceased person’s affairs.
What does the Executor do?
It is the responsibility of the executor to protect the assets of your estate, take care of unfinished business and distribute the estate in accordance with your Will. When a person dies, as well as leaving behind assets, most people leave unfinished business such as unpaid debts, incomplete business transactions and the like. Protecting the assets may involve storing valuables such as jewellery, ornaments or paintings, investing surplus funds and insuring property. The executor is personally liable for the security of assets. The executor will notify government agencies and other institutions of the death, to ensure that liabilities do not continue or income such as a pension is stopped. The executor will confirm all the assets and debts of your estate. This involves writing to financial institutions, government agencies and relevant companies, searching records (especially Lands Titles Office) and preparing an inventory of household furniture and personal effects. When all information is collected by the executor, it will then be necessary to apply for a Grant of Probate to administer the estate. This document is issued by the Supreme Court of the Northern Territory and legally authorises the executor to deal in all matters relating to your estate. When Probate has been granted the executor is able to lodge a final taxation return, redeem bank accounts and investments, sell or transfer real estate and motor vehicles and pay debts. Once these matters are finalised, the executor will distribute your estate to the beneficiaries, according to the wishes outlined in your Will.
What is a Beneficiary?
A beneficiary is a family member, friend, charity or organisation who benefits from, or is left something in your Will.
How long will it take?
The administration of an estate can take anywhere between twelve months and several years, depending on the type and complexity of the estate. Legislation dictates statutory requirements, such as placing advertisements in newspapers calling for claims on the estate, which allows a 60 day period for claimants. Searching for bank accounts, superannuation and beneficiaries can also lengthen the administration time for an estate. Should the Will be challenged, a period of 12 months from a Grant of Probate is allowed for a claim to be lodged in a Court.
If I am a Beneficiary and under 18 years, what will happen to my money?
If a Will is in place, it will depend entirely on the instructions outlined in this document. Should the Will dictate that the beneficiary should receive funds upon attaining 18 years, or any other nominated age, the executor must set up and maintain a trust fund for this person until that age is reached. Should no Will be in place, the administrator of the estate will also need to establish and maintain a trust fund for a minor, until that person either attains the age of 18 years or marries.
Why use the Public Trustee?
Being an executor is a demanding job. It requires a good understanding of legal, accounting and taxation requirements. There is a common misconception that it is a compliment to appoint a friend or relative as your executor and that it is a position of privilege. Many private executors find the role to be a burden. As your executor, the Public Trustee will administer your estate competently, impartially and with sympathetic concern for your family and beneficiaries. During the administration process, any money collected is prudently invested and earns interest at competitive rates. Many people believe that appointing a friend also means significant savings in the cost of administering the estate. This may well be true, however the person you appoint as your executor must have the skills to do the job, the time available to carry out the necessary tasks and be completely independent and impartial to all parties who will benefit from the estate. By appointing the Public Trustee, you can be assured of impartiality, affordability, efficiency, experience and accountability.
What legislation is applicable?