An Executor is responsible for:
- finding the will
- arranging for disposal of the body
- getting the death certificate from the Registry of Births, Deaths and Marriages
- ascertaining the deceased’s assets and liabilities
- assessing the value of the deceased’s assets
- obtaining probate if required
- paying the deceased’s debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
A grant of probate can only be made if there is a will. However, often the family does not know whether the deceased left a will or where it can be found. If you cannot find a will in the deceased’s personal papers, check with their bank or solicitor, or NSW Trustee.
Obtaining a death certificate
Usually, the funeral director arranges registration of the death and all you have to do is complete a death certificate application form, identifying yourself and your reason for wanting the certificate. Alternatively, the funeral director can obtain the death certificate on your behalf. The Registry will only be able to provide a death certificate if the death has been registered. If the death occurred outside New South Wales, you will need to contact the Registry office for the relevant state or territory.
Why you will need the death certificate
You will need to produce the death certificate for various purposes, such as:
- death certificate is required for making an application for Probate or Letters of Administration
- claiming insurance
- claiming superannuation
- drawing on the deceased’s bank account
- claiming for funeral benefits.
It is therefore a good idea to make a few photocopies and have each one certified as a true copy of the original by a person authorised to make such an endorsement. Any justice of the peace, lawyer or registrar of the local court or magistrate has this authority. The original death certificate is required for making an application for probate or for Letters of Administration.
WHAT IS PROBATE?
Before an Executor applies for probate, they will have to carry out some basic investigation work such as locating the deceased’s assets and liabilities, assessing the value of their assets, and finding out what asset-holding institutions require before they will release funds.
Probate is an order from the Supreme Court stating that the will has been proved to be the last valid will of the deceased, and allowing an executor to collect and distribute the estate in accordance with the terms of the will.
Probate will always be necessary if the deceased died owning real estate except if it is owned as joint tenants. Generally, when an estate is very small and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain probate or letters of administration. The need for a grant of probate also depends on the form in which the assets are held. Some asset holders will require you to produce a grant of probate before they will release assets above a certain value.
Locating assets and liabilities
The initial task of locating assets and uncovering any debts usually involves writing to the asset-holders and creditors asking for details of the assets and debts, and their requirements for release. A bank, for example, will advise whether or not they require evidence of probate before releasing the deceased’s funds to you.
Summons and affidavit
The probate application requires two documents to be filed with the Probate Office of the Supreme Court of NSW:
- a summons for probate
- an affidavit of executor.
More documents may be required if it is a complex application.
Granting of probate
If there is no dispute about the will, you will receive a grant of Probate. Probate will not be granted if the court has decided that the will is invalid (for example, that it is not the last will of the deceased), and a court case may result.
The Executor’s role ends once they have collected the assets of the estate, paid the debts and distributed the balance to the beneficiaries. However, if the deceased has made certain provisions in their will (for example, for the support and maintenance of young children or for the administration of a sum of money for someone’s benefit) a trustee will be needed. Usually, the person appointed as executor is also appointed trustee. A trustee’s role involves managing money or assets for the benefit of certain beneficiaries.