The law governs much of what needs to happen after a person’s death, and there are specific procedures set down for the various aspects of winding up their personal and business affairs.
As the executors appointed in the Will are often family members or friends, unfamiliar with the law and their responsibilities, the estate’s lawyer will give as much guidance as necessary throughout the administration process, and prepare documents as required. In many cases the estate’s lawyer will actually undertake all the administration and legal tasks in consultation with the executor/s.

There are, however, a number of families who are willing to do some of the ‘donkey work’ for the estate such as collecting documents, obtaining signatures on documents and so on. Most lawyers are very happy for families to help in this way. Not only can this save the estate some money, but it may also help families be involved and give them some sense of closure.

As a result of this pivotal role in the estate, the estate‘s lawyer is one of the first people you’ll need to inform after the death, preferably before the funeral although most of your contact will be after the funeral.

When a death is notified, the lawyer will check to establish if their firm is holding a Will for the deceased and, if so, whether it’s the most recent one.

If no Will can be found, the lawyer will need to apply for Letters of Administration.

The estate’s lawyer will then liaise with the executors to ensure that they understand the Will and their responsibilities, and guide them through the process.

Each executor must swear an affidavit (usually done at the estate lawyer’s office) to carry out the terms of the Will. Anyone who doesn’t want to swear on the Bible may make an affirmation instead of a sworn oath.

Probate

Probate is an order of the High Court to confirm the last valid Will of the deceased, and also the executor’s right to administer the estate (grant of administration).

Probate must be applied for unless the deceased’s only assets are financial assets that don’t exceed $15,000 at any one institution. The application for probate must be made to the High Court, in a very specific format, with equally specific information requirements. If the forms don’t comply with the
rules, the Registrar of the Court will reject them, which will cause delays in the administration of the estate. It’s not the time for do-it-yourself and it’s therefore usual for the estate’s lawyer to prepare these documents.

Until probate is granted, the estate goes into a sort of holding pattern where nothing much can happen, except making some preparations for, say, the deceased’s home to be sold.

Probate is now granted quite quickly – usually between four to eight weeks after the documents have been lodged at the High Court.

Administering the estate

Once probate has been granted, other documents will need to be prepared, witnessed and (if necessary) registered. These include documents to be presented to banks, finance companies and share registries in order to cash-up assets and transfer property. In the case of land, it’s usually necessary to sign forms so the estate’s lawyer can have the deceased’s property transferred into
the names of the executors.

Some of this work may be undertaken by the executor or the trustee, but whoever is doing it should keep all parties informed. To ensure that everyone does know what’s going on, most people will communicate via email – just remember to use the ‘Reply to All’ function. It’s the executors’ responsibility to ensure that all duties and tasks are carried out and that the estate is distributed in accordance with the law and the terms of the Will. The estate’s lawyer should explain what is required.

The estate’s lawyer will also explain:

• The executors’ responsibilities,
• The three pieces of legislation under which claims can be made against an estate, see section ‘Claims against an estate’, and
• The procedures needed if there's no Will, see ‘What if there’s no Will?'.

Please contact Tina McLennan or Jo McLennan for more information.