A will is a legal document that outlines how a testator’s estate is to be dealt with after his/her death. A testator is a person who has made a valid will. Having a will ensures that the testator’s assets are protected and provides the testator with an opportunity to appoint a guardian for any surviving dependent children.
A testator can also nominate an executor in his/her will. The nominated executor is the person or organisation who is responsible for carrying out the final wishes of the testator.
For the most recent will of the testator to be valid at the time of the testator’s death, the will must:
- be in writing
- be made by someone over the age of 18 with sound mental capacity
- be signed in front of two witnesses
- not be revoked by marriage or divorce.
A deceased estate is the total of all assets and liabilities held by the deceased at the time of death.
Assets may include: bank accounts, shareholdings, real estate and personal effects such as furniture and jewellery.
Liabilities may include: mortgages and personal loans.
It is usual for the named executor to make reasonable inquiries that the will identified is the most recent will of the deceased. This would include searching the deceased’s last place of residence, asking family or friends or inquiring of relevant solicitors, trustee companies and banks.
When the nominated executor applies for probate, they must verify that the will they are presenting is the final will of the deceased.
Before obtaining a grant of probate, it is necessary to advertise a notice of intention to administer the estate. This provides the opportunity for a third party to advise of a more recent will.
If a person dies without leaving a valid will, they are said to have died ‘intestate’.
If the deceased did not have a will, and proper inquiries show that no will has been left, the court will usually need to appoint someone to administer the estate. Often, this is the beneficiary with the largest entitlement in the estate.
If there is no will, the Administration and Probate Act 1985 (Vic) sets out the order in which the estate of a person who has died intestate should be distributed.
In some cases, the executor named in the will might have predeceased the testator or the named executor is no longer capable or willing to accept responsibility for the role. In such situations, the beneficiary with the largest entitlement in the estate may be able to act as administrator.
Probate, more appropriately referred to as a grant of probate, is a legal document that certifies that a will is valid and can be acted upon. It also gives the executor the legal right to administer the estate of the deceased person.
If you have been appointed as an executor of someone’s estate, your legal obligations and responsibilities begin immediately after the person’s death.
Your first job is to obtain the original will and ensure that a funeral has been arranged.
Once that is done, you will need to decide how to proceed. You can choose to:
- retain the role of executor in its entirety and administer the estate
- nominate another person or trustee company (such as State Trustees) to take over the role of executor
- retain the role of executor, but obtain assistance to complete all necessary tasks.
Straightforward estates can be administered in less than six months. Others can take more than a year.
The time taken to administer an estate depends on a number of things, including but not limited to:
- the complexity of the will
- the assets in the estate
- whether beneficiaries can be located and are over the age of 18
- whether any legal claims have been made against the estate.
Some of the most common causes for delays are:
- challenges in locating the will and delays with obtaining the death certificate
- difficulty in identifying and locating beneficiaries
- a person being incorrectly named in the will
- unclear payment directions from beneficiaries
- the executor is unable to ascertain who is in the group in instances where assets are left to a group of people (e.g. “my nieces and nephews”)
- dealing with issues when trying to obtain a grant of probate such as: capacity of the testator at the time the testator signed the will or inability to ascertain whether the will is the latest will of the testator
- beneficiaries cannot decide how to deal with assets
- dealing with assets outside of Victoria
- claims made against the estate after a grant of probate has been obtained
- dealing with the deceased’s taxation obligations
- dealing with trusts outlined in the will or creation of trusts in the manner directed in the will.
Have you run into problems administering an estate? State Trustees can provide support and guidance, enquire here.
If you have been nominated as an executor but do not wish to fulfil the role, you are not obliged to.
Being an executor can take a substantial amount of time and comes with great responsibility, including having to make legal and commercial decisions and resolve disputes.
The process of transferring the appointment of the executor to another person or trustee company is a straightforward process before probate is granted. Once probate has been granted, you cannot simply ‘opt out’. To vacate the role, a court order is required.