Person authorised and responsible to deal with the assets and liabilities of the deceased:
- If the deceased left a will the person responsible (“executor”) is appointed in the will
- If the deceased died without leaving a will (“intestate”) the person responsible (“administrator”) is the next of kin (usually spouse/partner or relative)
Duties of executor/ administrator:
The duties of the executor will depend on the instructions in the will and circumstances of each particular case. In general those duties involve:
- Arrange funeral. Sometimes wishes of the deceased are set out in the will. If the executor is not a member of the family of the deceased, contact the family.
- Ascertain the assets and ensure all property is secured including: insure all property; collect valuables; change locks if needed, protect business interest; advise banks of the death, cancel memberships and claim refunds;
- Ascertain liabilities and contact creditors;
- Obtain grant of probate (if there is a will) or letters of administration (if there is no a will) from the Supreme Court if the deceased owned assets which require obtaining a grant of probate/ letters of administration. The grant of probate is a Court document which confirms validity of the will and appointment of the executor, and the letters of administration appoint the administrator to be able to deal with those assets. For example to transfer a house and land to a beneficiary or sell them, to withdraw funds from banks over a certain limit, to transfer or sell shares over a certain value limit, the executor/ administrator will have to have a grant of probate/ letters of administration;
- Pay debts, lodge tax return, and distribute assets to the beneficiaries (including transfer/ sale of house, land, shares, funds from banks; distribute furniture and personal items; establish trust if there are minor beneficiaries)
Distribution of the estate
- If there is a will the estate will be distributed pursuant to the instructions in the will. If there is no a will the estate will be distributed pursuant to the legislation:
- If the deceased did not have children and had a spouse/ partner then the spouse/ partner is entitled to the whole estate;
- If the deceased had children then the spouse/ partner is entitled to first $100,000 of the estate and one third of the balance of the estate;
- If the deceased had a spouse and a partner their entitlements will be determined according to the numbers of years the partner lived with the deceased immediately before the death;
- If the deceased died without a spouse/ partner or children then the parents of the deceased will receive the estate;
- If the deceased died without a spouse/ partner, children or parents the estate will be distributed between the deceased’s brothers and sisters;
- If there are no next of kin, the estate will be distributed to the Government.
For more information please contact our Wills & Deceased Estates team, Trent McGregor on 03 5434 6666 located at 386 Hargreaves Street, Bendigo or Vesna Pocuca on 03 5472 1588 located at 157 Barker Street, Castlemaine.
