Administering a deceased estate including any trusts that form part of the estate can be complicated and at times be very stressful for both beneficiaries and executors to an estate.
Our specialist Wills & Estates lawyers have the experience and compassion needed to guide and assist you through this process and to ensure that the best possible outcomes are achieved with the least amount of distress for all parties involved.
Areas of expertise
In many instances the administration of an estate will not involve a dispute and an uncontested Application for Probate or Letters of Administration can be made.
Obtaining a Grant of Probate
Obtaining “Probate” simply means proving that the Will that is relied upon was the last Will prepared by the deceased. Probate is granted by the Supreme Court and gives an Executor the power to administer the Estate.
If no Will exists then the deceased has died intestate and a Grant of Letters of Administration is granted by the Supreme Court giving an Administrator the power to administer the Estate. Legislation sets out who can apply to be an administrator and how the estate will be distributed in intestate deceased estates.
A Grant may not always be needed particularly for more modest estates with limited asset pools. However, if the deceased owned assets of value then it will ordinarily be necessary to obtain a Grant before administering the estate and distributing the deceased’s assets.
Other areas where we can advise and assist
In addition to obtaining a grant of probate or an authority to administer and distribute the estate on behalf of the Executor pursuant to the provisions of a valid Will, we are able to assist with the following:
- If no Will exists, then we can obtain a grant of Probate or Letters of Administration;
- Family Agreements to alter the distribution of assets – When the family and beneficiaries agree to change the distribution of assets from what is set out in a Will a Family Agreement may be reached. This can also apply where the deceased died without a Will and the rules of intestacy would ordinarily apply but the family and beneficiaries have decided on an alternate distribution of assets;
- Duties and responsibilities involved in administering estates and testamentary trusts including charitable trusts;
- Identification, location and collection of any of the deceased’s assets;
- Consider any potential tax liabilities for the estate;
- Review any debts owed by the deceased and advise on the correct legal order for payment of those debts and the distribution of any assets;
- Preparation of estate accounts and a distribution of assets report to be given to the beneficiaries; and
- Advise in relation to any claims for commission for work performed by an Executor in administering the estate.
Contested Applications for Probate or Letters of Administration
Regrettably, not all deceased estates are able to be administered without a dispute between nominated beneficiaries or, as is often the case, would be beneficiaries.
When disputes occur, we are able to provide advice in relation to a broad range of potential issues including:
- Who should have the authority to administer the estate;
- Whether any document or recording could constitute a valid Will;
- In the case of competing documents which of a number of documents and/or recordings constitutes the deceased’s last valid Will;
- The likely costs involved if the dispute becomes litigated;
- Potential outcomes if a dispute becomes litigated; and
- Alternative methods of resolution of a dispute including mediation which may enable a contested application to be resolved before having to proceed to court.
Trusts created by a Will are known as ‘testamentary trusts’. Usually testamentary trusts are described as being ‘discretionary’ meaning the Executor of the Will has complete discretion to decide who will benefit from the trust and the extent of any benefit.
Testamentary trusts are a useful way of splitting income from an estate as they can be useful in obtaining certain tax advantages and may also be used to protect the assets left to a beneficiary from any financial or other difficulties they may be suffering, for example, if the beneficiary is in the middle of a divorce at the time of the administration of the estate.
In order for a testamentary trust to be effective it is essential that is properly set up in the first place. We recommend that you speak with one of our specialist lawyers to obtain advice on how best to set up a testamentary trust and in relation to all other estate administration issues. This is an area where we have considerable experience and expertise and we look forward to assisting you.