Dealing With a Deceased Estate
Losing a loved one is difficult enough without the added stress of having to sort out their estate. They often leave behind a lifetime of accumulated stuff and property that requires dealing with.
Usually, before any assets can be dealt with, an application needs to be made to the Supreme Court for a grant of probate or letters of administration. This allows the executor or administrator to deal with bank accounts, transfer or sell shares and pay deceased estate debts.
What is Probate?
A deceased person’s estate must go through probate before heirs and beneficiaries can take legal ownership of their belongings. The process carries out the instructions in the deceased’s will (or state law if there is no will) and settles any debts. It can take months to complete and includes appointing people to deal with queries from residuary beneficiaries, creditors or other stakeholders. This is often a time-consuming and complicated task which can also be expensive.
The executor of the estate must make an inventory of all assets and liabilities of the deceased. This will include bank accounts, investment accounts, insurance policies, superannuation funds, retirement village or aged care accommodation bonds and any business assets such as shares and motor-vehicles. It will also include personal effects such as furniture, art work and antiques. The value of these items must be determined by obtaining written confirmation from financial or investment institutions and/or valuations from licenced valuers. Liabilities might include outstanding mortgages, debts to family and friends or any other pending legal claims.
Once the executor of the estate has made an inventory, they must pay any tax owed by the deceased person or their estate. This is a significant part of the role and may involve dealing with complex or backdated tax assessments. It is also possible that the deceased estate will have to sell some assets, especially real estate. It is important that the executor acts in a diligent manner and does not make any unauthorised investments or misappropriate the estate’s assets.
It is important to note that if the executor of the deceased estate wants to sell any assets they will need to obtain a Grant of Probate or Letters of Administration before doing so. This can be a lengthy process and can delay the sale of a property or other assets.
In some circumstances, an executor can sell a property without a Grant of Probate or Letters from the Supreme Court but this can be a risky and unwise move as it can turn off a number of buyers and potentially reduce the sales price by a considerable amount. In this circumstance, the executor will need to have a very good reason for why they are selling the property without the necessary clearance from the Supreme Court.
Who Can Administer A Deceased Estate In WA?
When someone passes away in Western Australia, a suitable person must assume legal and practical responsibility for the deceased estate administration. The process is governed by the Administration Act 1903 and common law precedent. The person who assumes this responsibility is known as a personal representative.
The first step in deceased estate administration is to apply to the Supreme Court of WA for a Probate grant. The application can be made by a solicitor, the executor or anyone else who is entitled to administer the estate.
Once Probate is granted the personal representative can begin to collect and account for all of the estate assets. This is a vital step because it allows the personal representative to identify and protect assets from a claim by the deceased’s creditors. This also ensures that the estate is able to maximise returns on investments.
As the administrator of a deceased estate, the personal representative has a duty to take care of all of the estate assets in a prudent manner. This means buying insurance for property, investing funds to avoid losses and assuming responsibility for business interests. In addition, the administrator must abide by the law and ensure that all tax liabilities are paid.
Depending on the size of the estate, it may be necessary to get financial advice. In particular, it is important to know whether the estate is liable for income tax or capital gains tax. It is advisable to contact a tax agent or accountant to find out the answer to this question.
It is the executor’s duty to notify all of the deceased’s creditors of their death. This can be done by placing a Section 63 Notice in the government gazette and a local newspaper. Creditors generally have two years to make a claim against the estate.
If there is not enough money in the estate to pay all debts, state law determines the priority of claims. Family allowance has the highest priority, followed by funeral expenses, expenses for the last illness and then probate costs. If the estate is not insolvent, it may be worthwhile to seek professional advice on whether it is possible to sell off some of the assets.
Who Can Make A Claim Against A Deceased Estate?
If the deceased owed debts to creditors, creditors have the right to make claims against the estate. The executor of the estate must review all claims and pay valid ones. Some states have rules about which creditors are given priority and what should happen if the estate has insufficient assets to pay all valid claims. The creditor must file the claim in a timely manner and meet any deadlines. If the claim is rejected, the creditor may file a lawsuit against the executor.
The person making the claim will need to state under oath that they are owed money and provide detailed information about the amount owed, payment history, and any documentation they have. This can be done by submitting a written letter to the personal representative of the estate. The letter should include the amount owed, payment history, and an estimate of the value of the estate’s assets. The letter must also be signed and dated.
Typically, creditors have four months to make their claim. The deadline starts on the date of publication of the Notice to Creditors. If the executor rejects the claim, the creditor can ask for a hearing. The court will look at the merits of the claim, the reason it is outside of the four-month timeframe, and any documents or persons who testify to support it.
If there are insufficient assets to pay all creditors, the executor can make a distribution of property to the beneficiaries. The beneficiaries must agree to this and sign a waiver of interest in the estate’s property. The personal representatives are not liable for the debts of the deceased estate unless they personally held the debts with the decedent or their carelessness led to the inability of the estate to pay them. Spouses of the decedent are not liable for the deceased’s debts unless they co-incurred the debts with the decedent or the debt is considered community property.
It is a good idea to hire an estate litigation lawyer if you have any questions about the process of settling a deceased estate. They will be able to explain the process, deadlines, and rights of claimants. If you are not sure how to proceed, they can help you prepare the claim and file it with the court. They can also help you understand your options if the claim is rejected.
Who Can Sell A Deceased Estate?
Selling a deceased estate can be a complicated process and requires the involvement of a qualified probate lawyer. It can also be expensive as a result of paying taxes and other fees. It is therefore important to understand what the roles and responsibilities are before starting the process. This can save you a lot of money and time. It is advisable to get in touch with a real estate agent and an attorney to help you through the process.
The first step is to determine the legal status of the property. This can be done by examining the death certificate and checking how the property was titled. If the deceased left a will, it needs to be presented at court to confirm its authenticity. Once this is done, an executor or administrator is appointed. If there was no will, the estate will be passed to heirs according to the rules of intestacy.
One of the most important duties of the executor is to pay any outstanding debts from the deceased’s estate. This can include credit card bills, utility bills and even a mortgage. The executor will also pay funeral expenses and taxes owed by the deceased. After this, they will be able to sell the property.
However, it is important to note that creditors can make a claim against the estate if they have not been paid in full. The executor of the estate should therefore try to contact all creditors and place a notice in the Gazette, which is the official public register of legal notices in the UK. This will give creditors the opportunity to make a claim before the estate can be sold.
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Losing a loved one is difficult enough without the added stress of having to sort out their estate. They often leave behind a lifetime of accumulated stuff and property that requires dealing with. Usually, before any assets can be dealt with, an application needs to be made to the Supreme Court for a grant of…