After the passing of your loved one, it is important to have the estate administered efficiently and correctly.
What is Required to Administer an Estate Correctly?
Exactly what is required will depend on the nature of the estate. Smaller estates can be administered without the need of any court process. Jointly owned assets can be passed to the surviving joint owner in a similar simple manner. If the estate is extensive in terms of the different types of assets it comprises or is large in value, it will be necessary to apply to the court for Probate.
The following are some major items you will need to address as you progress the estate:
Call or email Peter Carter if you need more help:-
Capacity. A testator must have legal capacity to make a valid will. Someone with, for example, dementia, can only make a valid will (or vary one) during a medically certified “lucid” period or by application to the Supreme Court. Capacity can be a source of dispute in estate administration.
Execution. The formal signing of a will. Any irregularities in sed when Probate is applied for.
Executor’s commission. Depends on the extent of the executor’s “pains and troubles” but can be as high as 6% on income derived and 5% on capital realised.
Cannot be charged without an order of the court or unanimous agreement of beneficiaries.
Executor’s year. The period of 12 months allowed to an executor of a deceased estate to pay, free of interest, any legacy left by the will.
Intestate. The estate of a deceased who dies without a will. A spouse, relative or creditor can apply to administer the estate and distribute assets (mostly to spouse and children) according to specific rules.
Jointly owned. Property “in joint names” (usually the husband and wife) for example, bank accounts or a family home, do not become part of the estate but rather, pass automatically to the surviving joint owner.
Letters of Administration. A “grant” from the court authorising a relative or creditor of the deceased who has died without a will, to administer their estate.
Probate. The court’s official recognition of a will and a person’s authority to deal with the estate. Except in the case of estates involving only small bank balances, Probate must be obtained before an executor can take control of the estate’s assets.
Spouse. A life partner (married, de facto, heterosexual or same sex) who has Family Provision and Intestacy rights.
Survivorship. Where 2 or more persons die in the same calamity and it is unknown which of them died first, the deaths are “presumed to have occurred in order of seniority” with the younger surviving the elder “for a period of 1 day”.
People who perform the administration of an estate are entitled to remuneration even if there is no provision in the will that they be paid.
The extent of commission depends on the duties performed and the extent of the executor’s “pains and troubles”. Negotiations with beneficiaries or other parties, preparation of properties for sale, the conduct of a business pending sale and making decisions on the investment of funds can all be onerous duties.
Commission can be as high as 6% on income derived and 5% on capital realised.
It cannot be charged without an order of the court or unanimous agreement of beneficiaries.
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