Deceased Estates
After a person dies, someone needs to look after their property and finalise their affairs. This is referred to as ‘administering an estate’ and is carried out by the executor/s appointed in the deceased person’s Will or an administrator (appointed by the court) if a person dies without a Will (intestate). If you are the executor of a deceased estate or have recently lost a family member, we can guide you through the process of administering the estate. If you have been unfairly left out of a Will, then we can help you to contest it so that proper financial provision is made for you.
Administration of Estates
Executors and administrators have many responsibilities which typically include:
- making funeral arrangements
- identifying and protecting assets
- applying for a Grant of Probate or Letters of Administration
- contacting the deceased’s account providers and government authorities
- claiming funds under superannuation and life policies
- distributing assets, and transferring property to beneficiaries
If you are an executor of a Will or a principal beneficiary in an estate, we can help you take the steps necessary to collect the assets, identify their value, lodge the appropriate documentation in the Supreme Court for a Grant of Probate or Letters of Administration, and attend to the distribution or transmission of assets according to the Will or provisions of intestacy. We will help to ensure that you comply with all your obligations in a timely manner and guide you through the administration process.
At times Wills and the administration of estates can be problematic. We give practical advice and take any preliminary steps necessary to check that the Will can be relied upon. We can also administer estates for beneficiaries overseas and for minor beneficiaries. We may need to advise you if someone makes a claim against the Will and assist you to uphold the wishes of the testator.
Probate and Letters of Administration
A Grant of Probate made by the Supreme Court allows an executor to distribute the assets of the estate. Probate may not always be required to administer an estate – this generally depends on the type of assets and who holds them.
The process of applying for Probate begins with publishing a Notice of Intention, so that any creditors or family members intending to make a claim against the estate can contact the executor. A series of documents, including the death certificate and inventory of the deceased’s property, are then lodged with the court.
If the court does not raise any requisitions and grants Probate, the executor may commence distributing the assets of the estate.
If the deceased died without a Will, the family may need to apply for Letters of Administration. As in the case of Probate, the necessity to obtain Letters of Administration is often determined by the asset holder. Usually the next of kin, be it a spouse, domestic partner or child, makes the application to the Supreme Court.
Estate Disputes
A person’s death can lead to disputes about their estate, for example, disputes as to adequate provision from the estate or where eligible persons have been left out of a Will, or whether the deceased had the necessary capacity to make a final Will. Often these disputes are successfully negotiated. However, sometimes they may require mediation or litigation.
Family Provision Claims
A Family Provision Claim may be made by an eligible person seeking a share or greater share from an estate if it can be shown that a deceased’s Will (or a proposed distribution of an intestate estate) does not make adequate provision for the claimant. If you have been left out of a Will or receive less from a Will than you think is reasonable, you may be eligible to make a claim against the estate. A successful claim can result in the terms of a Will or distribution of an intestate estate being altered in your favour.
Mediation
Mediation is the most common form of dispute resolution and involves a third party (mediator) who assists the parties to reach an agreement. Mediation can be a viable option for resolving estate disputes.
There are different forms of mediation which may impact on the level of involvement that the mediator has (for example, in evaluative mediation models, the mediator may express a view on the reasonableness of settlement or may highlight weaknesses in a party’s case. On the other hand in a facilitative model the neutral mediator assists the parties to find common ground). Mediation is private and confidential and enables parties to voice their views and attempt to reach agreement or at least narrow the issues in dispute.
Whilst there is no obligation to mediate disputes generally, mandatory mediation or other forms of dispute resolution are becoming increasingly common in certain jurisdictions. For example, in disputed estate claims, parties must mediate the matter prior to a hearing.
Maryanne Ofner is an experienced mediator and can provide mediation services or invaluable assistance in advising you through the process.
Collaborative Practice
Collaborative practice is a process that helps people in conflict resolve their differences privately, in a dignified and respectful way without going to court. While collaborative practice has been used mainly in the area of family law, it has application for all kinds of matters, especially wills and estates disputes.
Estate Litigation
Some matters cannot be resolved without using court processes. Proper preparation is key to a litigated matter and our lawyers are experienced advocates. We will prepare your case thoroughly in pursuit of your rights and have access to skilled barristers to assist with the best presentation of your matter before a Judge.
If you need assistance, contact one of our lawyers at [email protected] or call 02 9929 8777 for expert legal advice.