At Tim Clarke and Co Lawyers we understand that dealing with a Deceased Estate is one of the more difficult challenges in life. From mountains of paper work to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important to you.
So, let us help make your life easier by:
- Interpreting the terms of the Will
- Advising executors and trustees in regard to their duties and rights
- Informing government bodies including Centrelink, Veterans Affairs and the ATO
- Applying for Probate of the Will in the Supreme Court
- Dealing with intestacy (where there is no Will)
- Applying for Letters of Administration (if the Will is deemed invalid or is absent)
- Identifying estate assets and liabilities
- Obtaining valuations of estate property
- Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
- Selling or transferring estate property including estate auctions
- Paying estate debts including mortgages, funeral costs, and testamentary expenses
- Advising in regard to family and testamentary trusts
- Administering trust funds
- Distributing gifts and inheritances to beneficiaries
- Organising information for estate tax returns
- Contesting wills and commencing Family Provision claims and Estate Litigation in the Supreme Court
Administering an Estate
Have you been nominated as someone’s Executor?
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms of their Will and to protect their assets under the various laws and rules that govern Estate Administration in South Australia.
An executor’s duties may include responsibilities such as:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased; advertising for creditors
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
At Tim Clarke and Co lawyers we understand that being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.
Do I need a Lawyer?
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. In most cases, the cost of legal advice is covered by the Estate, not the Executors.
What is Probate?
Probate is an order of the Supreme Court whereby the Court acknowledges the validity of the will and give authority for the applicant to carry out their duties as the Executor of the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds. If you are not sure whether you need a grant of probate, please feel free to contact our office so we can point you in the right direction.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply to the Supreme Court for Letters of Administration, which will give you authority to administer the estate.
What if I’m not up to the job?
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. We are happy to speak to you and give you advice about your circumstances, and we are always happy to help you fulfil your role as executor. We will help you with the paperwork and, if necessary, speak to beneficiaries about the administration of the Estate.
Contesting a Will
If you’ve been left out of a Will or have been unfairly treated you may be able to make a claim against the estate.
Who can dispute a Will?
The types of people who can make a claim for Family Provision out of an Estate are:
- Domestic Partner
- Child, Stepchild or Grandchild
The process of claiming is much more complex than being identified as one of the above-mentioned persons so please contact us to discuss your particular circumstances.
Is there a time limit?
Yes, there is. You have only 6 months from the grant of probate to make a claim. In limited circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.
What if I don’t believe the Will was valid?
You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
How do I make a claim?
Simply contact our friendly staff, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and, if appropriate, make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases, mediation will be required by the court.
Failing all else, we will proceed to a court hearing wherein the evidence will be presented and a judge will decide.
We can help
At every stage of contesting or challenging a Will it is important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf.