Deceased Estate Administration

Deceased Estate Administration 2020-07-20T09:20:34+00:00

Estate Administration

An overview of the situation:

When a loved one dies it is extremely difficult for the surviving family. Not only due to the emotional stress but the significant amounts of bureaucracy involved in finalising the Deceased’s affairs. There are extensive legal obligations imposed on executors and administrators. This exposes them to liability should the obligations not be properly fulfilled. After obtaining the benefit of advice, most families hand the file over to their lawyer or a professional trustee. By doing so they divest themselves of a heavy burden. We encourage all of our client’s to focus on their personal well being and to channel their energies into work or leisure.

Fixed & Deferred Fees

Most people can’t afford big legal bills. You shouldn’t be worried about money when a loved one dies. In most estates we manage, fees are taken entirely from the estate once the assets become available.

The other unique approach or firm takes towards billing is that it does not provide time charged services. We only provide fixed fee quotes which never change. This avoids cost blow outs and over servicing which regrettably does occur within the legal profession.

Instant Engagement

The purpose of the meeting is to assist families to navigate the minefield of bureaucracy. If nothing more, we hope to help families understand the processes of winding up an estate from start to finish so that they are at least off on the right track.

We can assist our clients to send identification, approve quotes and cost agreements all at the press of a button. Secondly, our firm has developed long standing relationships with other professionals including but not limited to accountants, realtors, valuers, auctioneers and conveyancers.

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INFORMAL administration:

In some estates it is possible to deal with the Deceased’s assets without the need to apply to the Supreme Court of Western Australia for a “grant of representation.” Probate of the Deceased’s Will, or a Grant of Letters of Administration if the deceased died “intestate,” (without a Will). Commonly, bank accounts, superannuation, life insurance, and certain interests in land are dealt with by producing the death certificate to the relevant authority. Families underestimate the time and effort required in liaising with these authorities. They often do not consider the veil of bureaucracy. In an informal administration, transactions which deal with realty require specialist skill and expertise. We would encourage you to consult with a lawyer or conveyancer should this be the case.

FORMAL administration:

Where the deceased owned a significant asset (more than $50,000.00) or is the registered proprietor of land (not subject to co-ownership by way of a joint tenancy) it is necessary to obtain a grant of representation from the Supreme Court of Western Australia in order to administer the estate.

Grant of probate:

A grant of Probate is an order of the Court which authorises an executor to act. On receiving the grant the Executor is entitled to call in and convert the assets of the estate, discharge liabilities, and distribute the estate assets according to the terms of the Will. In most cases, obtaining a grant of probate is a non-contentious administrative process. Family members underestimate the time and effort involved preparing the application. There are strict rules which you must follow. Improperly completed applications require further clarification from the court this results in delay in finalising the estate.

In some cases, the Will itself is defective. This complicates the application process. For example, the Will may not have been properly executed. The Will may contain marks, staple holes, or other damage, which raises a presumption that something was attached to it. The deceased may have suffered dementia prior to the date of their death. This raises the court’s curiosity as to whether, or not, the deceased had capacity to understand the will on the date it was signed. These kinds of applications require specialised affidavits.

Letters of administration:

Where nobody has been appointed to be the legal personal representative by a Will, a family member (or other person) may apply to the court to be appointed. These applications are commonly non-contentious. However, there is a long list of criteria which must be met before the court approves the application. The consent of every person eligible to apply for grant must be sought. If the Deceased left an infant child surviving them the application becomes significantly more complex. There are no “pro-forma” application forms for these kinds of applications. It is strongly recommended that you consider advising a specialist to assist you in making intestate applications to the Court.

Testate versus intestate administration:

When a person dies leaving a Will determining who the ultimate beneficiaries are and the extent of their entitlements is a pretty straight forward process. This is done by reference to the terms of the will and is known as “testate distribution.” By contrast, were a person dies without a will determining who is entitled is more difficult. “Intestate distribution” is governed by the terms of s14 of the Administration 1903 (WA). S14 contains a table of various kinds of family backgrounds. It specifies, depending on who has survived the Deceased, what share each family member is to receive. An extract of the s14(1) table is mentioned below:

1. dies leaving a husband or wife (whether or not other persons mentioned in item 2 or 3 also survive) the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property;
2. dies leaving a husband or wife and issue (a)         where the net value of the intestate property (other than the household chattels) does not exceed the sum of $50 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
 

 

(b)         where the net value of the intestate property (other than the household chattels) exceeds the sum of $50 000 — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $50 000, absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two-thirds;
3.         dies leaving a husband or wife and one or more of the following, namely, a parent, a brother or sister, or child of a brother or sister, but leaving no issue (a)         where the net value of the intestate property (other than the household chattels) does not exceed the sum of $75 000 — the surviving husband or wife shall be entitled to the whole of the intestate property;
(b)         where the net value of the intestate property (other than the household chattels) exceeds the sum of $75 000 —the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $75 000, absolutely, together with interest on that sum in accordance with subsection (4), and, of the residue, the surviving husband or wife shall be entitled to one-half and, as to the other half —(i)         where the intestate is survived by one parent or both parents —

(A)         if the value of that other half does not exceed the sum of $6 000 or if no brother, sister, or child of a brother or sister survives the intestate — the parent or parents shall be entitled (in equal shares where both survive the intestate) to that other half;

                        (B)         in any other case — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the remainder, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one-half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
                  (ii)         where neither parent survives the intestate — the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
4.         dies leaving a husband or wife but no issue, parent, brother, sister or child of a brother or sister the surviving husband or wife shall be entitled to the whole of the intestate property;
5.         dies leaving issue but no husband or wife the issue shall be entitled in accordance with subsection (2b) to the whole of the intestate property;
6.         dies leaving a parent or parents and one or more of the following, namely, a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue (a)         where the net value of the intestate property does not exceed the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
(b)         where the net value of the intestate property exceeds the sum of $6 000 — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $6 000, absolutely, and of the residue, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half;
7.         dies leaving a parent or parents but leaving no husband or wife and no issue, brother, sister or child of a brother or sister the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property;
8.         dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property;
9.         dies leaving no husband or wife and no issue, parent, brother, sister or child of a brother or sister but leaving a grandparent or grandparents the grandparent or grandparents shall be entitled (in equal shares where more than one survive the intestate) to the whole of the intestate property;
10.         dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, or grandparent but leaving an uncle or aunt or a child of an uncle or aunt the uncles and aunts of the intestate and the children of deceased uncles and aunts of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property but in applying that subsection for the purposes of this item a reference in that subsection to a brother or sister, or a child of a brother or sister, of the intestate shall be construed as a reference to an uncle or aunt, or a child of an uncle or aunt, of the intestate, as the case may be;
11.         dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt the whole of the intestate property passes to the Crown by way of escheat

Office:
L4, 23 Barrack Street Perth WA 6000

Postal:
Po Box Z 5017 St George’s Tce Perth WA 6831

Phone: 
+61 8 6117 9025

E-mail:
reception@gregsonandassociates.com.au

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