Understanding Legal Formalities: A Closer Look at Deceased Estate Settlement
The settlement of a deceased estate involves a series of legal formalities and procedures that must be followed to ensure proper distribution of assets and compliance with applicable laws. Here’s a closer look at some of the key aspects of this process:
Obtaining Probate or Letters of Administration
One of the first steps in administering a deceased estate is to obtain probate or letters of administration from the appropriate court. This legal document confirms the validity of the will (if one exists) and grants authority to the executor or administrator to manage and distribute the estate’s assets.[1][2]
To obtain probate, the executor must provide the court with a statement of the deceased’s assets and liabilities, confirmation of the will’s particulars, and an undertaking to handle the estate honestly and fairly.[5] If the deceased did not leave a will, the court will appoint an administrator, typically a next of kin, to oversee the estate’s distribution according to intestacy laws.[2]
Identifying Assets and Liabilities
Before distributing the estate, the executor or administrator must identify and value all assets, including real estate, investments, personal possessions, and any debts owed to the deceased.[2][3] They must also determine the deceased’s outstanding liabilities, such as mortgages, loans, and unpaid bills, which must be settled from the estate’s assets.[4]
Notifying Creditors and Potential Claimants
In most states, the executor or administrator is required to publish a notice of their intention to apply for probate or letters of administration in a major newspaper or court website.[3] This notice allows creditors and potential claimants to come forward and lodge claims against the estate within a specified period. No distribution can occur until this notice period has expired and any claims have been resolved.[3]
Paying Taxes and Settling Debts
Before distributing the remaining assets to beneficiaries, the executor or administrator must file the deceased’s final income tax return and pay any outstanding taxes owed.[3] They must also settle any valid debts and liabilities from the estate’s assets.[4]
Distributing Assets to Beneficiaries
Once taxes and debts have been paid, and no claims are pending against the estate, the executor or administrator can distribute the remaining assets to the beneficiaries according to the will’s instructions or intestacy laws.[2][3] Cash legacies and specific bequests (e.g., jewelry, furniture) are typically distributed first, followed by the residual estate.[3]
Providing Financial Statements
After the distribution is complete, the executor or administrator must provide detailed financial statements to the beneficiaries, accounting for all assets, liabilities, income, expenses, and distributions made from the estate.[3]
The administration of a deceased estate can be a complex and time-consuming process, often taking six months or longer, depending on the estate’s size and complexity.[3] Seeking professional legal and financial advice can help ensure compliance with all legal requirements and proper management of the estate.[1][2][3][4]
Citations:
[1] https://www.dbh.com.au/wills-and-estates/estate-administration/
[2] https://craddock.com.au/insights/basic-guide-to-administering-a-deceased-estate/
[3] https://www.perpetual.com.au/insights/a-guide-to-understanding-estate-administration/
[4] https://www.simplyestate.com.au/deceased-estate/
[5] https://www.genders.com.au/what-is-probate-and-is-it-always-required-in-south-australia/
[6] https://www.pcllawyers.com.au/what-is-the-legal-process-after-someone-dies/
[7] https://barelaw.com.au/uncategorized/estate-administration-10-step-guide-to-deceased-estates/
[8] https://www.supremecourt.wa.gov.au/W/what_is_probate.aspx
[9] https://www.armstronglegal.com.au/contested-wills/vic/deceased-estates/deceased-estate-administration-in-victoria/
[10] https://www.qld.gov.au/law/births-deaths-marriages-and-divorces/deaths-wills-and-probate/estates/probate-and-deceased-estates
[11] https://lawhandbook.sa.gov.au/print/ch36s02.php
[12] https://www.commbank.com.au/support/deceased-estates.html
[13] https://www.legalaid.nsw.gov.au/my-problem-is-about/someone-who-died/wills-and-estates/distributing-the-estate
[14] https://www.legalaid.nsw.gov.au/my-problem-is-about/someone-who-died/wills-and-estates/applying-for-probate/step-by-step-guide-applying-for-probate
[15] https://www.legalaid.vic.gov.au/administration-estate
[16] https://lawhandbook.sa.gov.au/print/ch36s02.php?enlarge_text=true
[17] https://www.tag.nsw.gov.au/sites/default/files/2020-10/Guide_for_Executorship_and_Probate.pdf
[18] https://www.sl.nsw.gov.au/find-legal-answers/books-online/rest-assured-legal-guide-wills-estates-planning-ahead-and-funerals/procedure-on-death-if-will
[19] https://www.gotocourt.com.au/civil-law/wa/probate/
[20] https://www.supremecourt.vic.gov.au/wills-and-probate/applying-for-a-grant-of-probate-or-administration
