When dealing with the administration of deceased estates, it is the personal representatives who have been assigned the responsibility for administration. The following list provides a basic overview of the duties assigned with being a personal representative:

• The collection and gathering of the real and personal estate so that the estate can be administered as per the relevant law;
• Provide to the Supreme Court a sealed exhibit which contains a full list of the inventory held within the estate;
• Prepare and submit to the Supreme Court an account of costs involved in the administration of the estate;
• Provide to the Supreme Court the relevant grant of probate and letters of administration; and
• Take active steps to distribute the estate according to the testamentary instrument.

The levels of experience held by personal representatives responsible for the administration of deceased estates will vary. In many instances the executors of the will have been nominated within the will of the deceased in this regard the executors may need to obtain assistance and guidance on the obligations and duties that the role of personal representative brings about.  In certain situations where there is an executor of a will who is unable or unwilling to act in that role, the Supreme Court will appoint an administrator. In these situations, the administrator appointed, generally the relevant Public Trustee in the state, will have the necessary experience to effectively handle the administrative role for the administration of the deceased estate.

Seeking Professional Estate Lawyers

For those who find themselves involved in the administration of deceased estates it is often extremely useful to seek the wealth of information that is available through both private and government organisations. By having a thorough understanding of what is involved in acting as a personal representative, the administrative process will be able to run smoothly with the risk of conflict being minimised.

In many instances, the family of someone who has died will decide to auction the estate. In some instances, the person who has died may also have made provisions for the estate to be auctioned with the money received during the auction being distributed amongst the beneficiaries.

Why Auctions?

There are a number of reasons why people decide to auction a deceased estate amongst those reasons are:

• A desire to equally divide real property between the beneficiaries by selling the estate.
• The actual property being distributed to the beneficiaries not being needed or wanted.
• The emotional needs of the beneficiaries.

There are many advantages of holding a deceased estate auction and because of these advantages, auctioneering companies have become heavily involved in specialising in deceased estate auctions. The specialisation of deceased estate auctioneering firms also provides the beneficiaries with a professional service and removes the emotions and stresses of dealing with the property of a loved one who has recently died.

Great Deals

Deceased estate auctions also provide a unique opportunity for others to acquire property that they desire and generally for a less than market value price. Deceased estate auctions provide an ideal opportunity for both loved ones and those looking to buy the property which was owned by the deceased. Many companies who specialise in auctioning deceased estates are also available to discuss their services with people who are in the process of either considering or drafting their will. By doing this, people are able to draft their will so that the beneficiaries of the deceased estate receive their share of the deceased estate in a form which is able to meet their exact needs. With the growing popularity for deceased estate auctions many people are better placed to take advantage of all the benefits that the auction can provide.

The distribution of the property within a deceased estate is overseen by both legislative and common law authorities.  The objectives of the laws relating to wills and estates are to ensure that a person’s property is distributed amongst beneficiaries as per their intentions before they died. In this case the distribution of the property in a deceased estate can be quite easy and won’t encounter any complex issues.

Should a situation arise however, where a person has not left a will or the will is found to be lacking or void then the distribution of the property needs to be done according to long established laws which have commonly become known as family provisions. In these cases the property is divided firstly amongst the closest family members including:

• Spouses;
• Children;
• Grandparents; and
• Brothers and Sisters

The intention for the property within the deceased estate to go firstly to the immediate family members stems from the community expectations that a person would desire that their property is distributed to those who it would expected for the deceased person to support and also who the deceased person would wish to support.

In situations where the deceased has no immediate family then the deceased estate is distributed equally to relatives who are in the extended family of the person who has died such as:

• Cousins, Uncles, and Aunties; and
• Nieces and Nephews

In extreme situations where the deceased has no family then the government is able to have the deceased estate distributed in whole to the crown. The hierarchy of distribution shows the importance of a person making a valid will to ensure that their intentions for the distribution of their property once they die can be followed. Without a valid will those close to the person who dies will be faced with a situation where there are competing proposals for how the deceased estate should be distributed and this can create further distress for people still coming to terms with the loss of a loved one.

When someone dies, all of their property, including real and financial, becomes part of their estate. Generally, when a person dies, the property that is brought into the estate will be fairly easy to identify, however, some property which can be found within a deceased estate is easy to identify, however other property owned by the deceased could easily be forgotten when establishing the property pool of the estate.

When an estate is being administered by a legal practitioner, they will have an understanding of all of the assets which could be considered to be property of the deceased. This includes things such as intellectual property that many people who lack familiarity with the administration of a deceased estate may overlook. Sometimes property owned by the deceased is not always what it seems and it is necessary to ensure that all of the assets of the deceased are identified so that valuations can take place for their actual monetary contribution to the deceased estate.

It is expected that when a person forms their will they will be in a position to identify all of the property interests that they enjoy. In saying this however, it may have been sometime since the deceased wrote their will and new property interests may have come into their possession since that will was made. This is why there is a major obligation placed upon the administrator of the will to ensure that all of the deceased’s property had been identified and located. If the administrator fails to identify all of the property interests at the time of administering the will there are a series of issues which will arise.  For those who are given the responsibility for administering a deceased estate it is important that they seek the guidance of professionals to ensure that the complete property pool is accounted for.

When a person dies without leaving a will or has a will that fails to deal with all of the property to be effectively disposed, it is considered that they have died intestate. For centuries there have been rules that deal with the property left by a person who dies intestate, these rules are based upon kinship and proximity.

Kinship, Proximity & the Deceased’s Estate

The closer a person is within the kinship chain the greater entitlement that they have to the property to be distributed. In Australia these century old rules, which stem back to the Statute of Distribution which was enacted in England in 1670, have been followed and are enacted within the respective state based Succession Act.

As closer kinships rule out remote kinships there is a pecking order as to who the property is distributed to. The following highlights the order in which an intestate’s property will be distributed:

• Spouse/Children
• Parents
• Brothers, Sisters, Nephews & Nieces
• Grandparents
• Uncle’s, Aunts, & Cousins
• The Crown

Should at the time the intestate dies, he still has a surviving spouse and child or in fact children, then the property will be equally divided between them. The order of distribution for the intestates property only comes into issue should the intestate not have a spouse or child that survives them. Much of this law is also covered within Family Provision legislation.

Get a Will & Protect Your Estate

While many people fail to leave a will when they die, the distribution of property order shows that there is a long list of people who can ultimately share in the residuary estate. By failing to have a carefully planned will people effectively have no say in how their property will be disposed of after their death. The making of a will is a simple process and will limits family disputes about who should and should not receive property from your estate.

In Australia, the law of succession deals with the distribution of property from a deceased estate. One of the concepts of Australian property law is that property must have an owner; this is the basis for much of the Australian succession legislation, whereby property must transfer from a deceased person to another person. In each Australian state and territory, the Supreme Court has been granted the jurisdiction for matters concerning succession.

Essentially with deceased estates within Australia where a person obtains a benefit from the will of a person or the rules of intestacy, they become known as a beneficiary. However, should a person obtain realty from a will or the rules of intestacy then the provision becomes known as a devise and the person becomes known as a devisee. These terms all stemmed from English jurisprudence and identify that the making and administration of a will can become complex and there are many laws which effect the outcomes that the will is trying to achieve. Because of this complexity it is usually considered necessary to seek the advice of a legal practitioner experienced in succession law at each stage of the probate process.

After a person dies the administration of the deceased estate in Australia becomes a regulated process to ensure that the testamentary intention of the deceased is complied with. These regulations provide a safe guard to ensure that the estate of the deceased is distributed according to how they have written their will so that the risk of fraud or mismanagement is minimised. This is one of the reasons that the Supreme Courts of each Australian state and territory has been provided with the jurisdiction of succession matters. For those who are involved in the distribution and administration of property from a deceased estate in Australia it is essential that they understand the regulations and laws which need to be complied with.

Discretionary trusts can come in a number of forms. The most recognised trusts in Australia are family trusts and testamentary discretionary trusts. The trustees of both the family trust and testamentary trust are provided with similar powers which provide them with the necessary discretion to distribute property between those nominated within the will.

Advantages to Using a Discretionary Trust

By establishing a testamentary discretionary trust the subject of the deceased will have in actual fact provided a number of significant advantages to the beneficiaries such as:

• Flexibility
• Asset Protection
• Taxation Planning

With a testamentary discretionary trust the trustee is provided with the opportunity to remain flexible and provide the beneficiaries to receive their inheritances at any time instead of at the time of a will being administered. The testamentary discretionary trust also provides the opportunity for the trustee to protect the assets contained within the trust. As the assets aren’t owned by one particular beneficiary in the trust the assets can effectively remain protected should a beneficiary face bankruptcy related proceedings. Another  because the taxable income of the trust can be distributed amongst members in a manner which is tax effective for each member.

Seeking Professional Help

Testamentary discretionary trusts provide a range of commonly overlooked benefits and should be carefully considered by those with complex financial and property distribution needs when drafting their will. While testamentary discretionary trusts are quite a simple alternative to distributing a deceased estate there are a number of requirements that need to be fulfilled before they become a workable testamentary discretionary trust.  Legal practitioners are well placed to provide the necessary skill and guidance to ensure that any testamentary discretionary trust complies with current succession laws and regulations, especially if extra-territorial jurisdiction issues arise for the deceased estate to be distributed in accordance with the testator’s intentions.

Within Australia, probate law relates to the legal process of distributing the assets registered within a deceased estate. Probate law touches upon many areas of succession including how a deceased estate is to be administrated, whether wills are valid or have previously been revoked, and in highly contentious situations such as the deceased estate of juveniles or those who have been judged as being incompetent or incapable at the time of making the will.

Why Probate Law Exists

The main objective of probate law is to deal with the property of the deceased person so that it is distributed to the beneficiaries as per the intentions of the deceased.  In the majority of succession matters it will be the executor who is named within the will who will commence the probate related legal proceedings.

As in many instances the executor of the will generally will be a major beneficiary of the will. this can result in conflict between parties involved in the will and also places a great deal of stress upon the executor when they are already mourning the loss of a loved one. For some people, unless their estate is a very simple one, it may be beneficial to organise their financial and physical property so that issues encountered during the probate process can be avoided. By effectively planning to avoid the probate process, the distribution of property and finances involved in the estate can also be undertaken quickly and more efficiently and the costs which would otherwise be encountered can be greatly reduced.

Seeking Help

For people planning to avoid the issues surrounding probate it would be necessary to seek the advice and guidance from both a legal practitioner and also a financial advisor or accountant. One of the most effectively used tools for this type of planning comes through the use of discretionary trusts which are commonly known as family trusts.

Regardless of who you are there is nothing surer than one day, you are going to die. But just because of this fact there is no need to not be there for your family and loved ones after this occurs. By having a valid and legal will people are able to make provisions for their family members after they die. In the majority of cases people will go to their local solicitor and have them draft and execute their will for them, this is generally a recommended practice especially if your property and financial affairs are complicated. However, in Australia people also have the ability to purchase a probate kit, or in some cases they can have a probate kit provided to them by their employer.

What a Probate Kit Involves

A probate kit allows people to prepare their own will in simple matters from the comfort of their own home. As there are a number of standards that the will is required to follow, probate kits also provide step by step directions to ensure that the will complies with the legal requirements. Probate kits are a great resource for people who have relatively simple affairs or who are making joint will with their spouses. After you have executed the will contained in your probate kit you will also find that there is detailed instructions so that the administration of your will effectively and efficiently.

Is it Worth Doing?

The convenience that is provided by current probate kits ensures that every person has the opportunity to prepare a will so that their property can be distributed as they intend amongst their loved ones and relatives when the inevitable day arrives. With most probate kits costing under ten dollars it is sure to be a cheaper and more efficient purchase than the cost would otherwise be for those who suffer from the strict intestacy rules within Australia.

As has been quite famously stated, there is nothing surer than death and taxes, and this statement in itself is quite poignant to consider when being faced with a deceased estate. Like most events throughout a persons life, most will in some form or another have taxation implications. In the case of deceased estates, one of the greatest tax implications evolves around capital gains tax.

How Tax Affects Deceased Estate

When the a person dies, they are no longer legally capable of owning property, this is why that the laws of succession deal with the distribution of the deceased’s property so that the property once again has a legal owner. This is where the Australian Tax Office is provided an opportunity to assess any taxes that may become owing due to the distribution of the property.

We recommend pursuing advice from an experienced professional, however, you can read about how it affects your capital gains tax here.

Approaching Deceased Estate & the ATO

Taxation is a complex issue and it is often wise for people when drafting their will to consider any tax implications which may be incurred by the beneficiary. One of the first places to look for advice on taxation issues is the Australian Tax Office itself. However, while the Australian Tax Office is committed to providing relevant information, they are not in a position to offer actual advice so it is often a good idea to seek the assistance of a legal practitioner experienced in taxation matters or from a Chartered Public Accountant. These professionals are aware of updated taxation legislation and how the tax laws will affect the deceased estate to be administered.  By having an awareness of how the Australian Tax Office will approach a deceased estate, the person will be in a much better position to draft their will so that their beneficiaries can enjoy their inheritance without the financial consequences of taxation.