Booklet: What to do when someone dies (Chapter 3 – What to do within weeks)

Booklet: What to do when someone dies

Below is Chapter 3 of our ‘What to do when someone dies’ booklet. To read the other chapters of our booklet, click the links below:

Notifying other organisations

When someone dies a number of people and organisations need to be told. This helps to finalise the person’s affairs and makes sure you can get the help you need.

Documentation

Before you start contacting the relevant people or organisations, it might help to have a look around and see if the deceased had a filing cabinet, folder or document case. They may have records that give important reference numbers such as an account number, Medicare number or health fund membership number.

A very organised person may have left a list of their key information (including computer passwords and key locations) with their Will.

Some important documents to look for are:

  • A Will;
  • Birth and marriage certificates;
  • Certificates or confirmations of title;
  • Home loan statements;
  • Leases (if the deceased rented any
    real property);
  • Tax records, such as copies of past tax returns;
  • Property insurance policies (for example, home, contents and car);
  • Life insurance and superannuation policies; 
  • Share certificates and dividend statements; and
  • Savings account details (showing where the savings are kept);
  • Loan statements for any loans owed to the deceased; and
  • Any outstanding invoices payable by the deceased

You should also contact the deceased’s professional advisers and ask for any documents or other relevant information that they have in relation to the deceased’s affairs. 

These professional advisers include the deceased’s solicitor, accountant, tax agent, financial planner and insurance broker. They may not be able to provide you with some of this information until probate has been obtained due to privacy laws. 

However, you will be entitled to a copy of the Will if you are named as an executor, or you must be told that you are not named as an executor.

Life insurance policies

Depending on what insurance policies the deceased held, the deceased’s next of kin or nominated beneficiary of the policy may be entitled to a payout.

To make a claim, you should first call the insurance company. The insurance company will generally then send you the relevant claim forms in the mail. Once these have been completed and signed, they should be sent back to the insurance company, after which a Case Manager will generally be assigned to assess your claim and make a payout.

The exact method of making a claim may vary between insurance companies. To ensure that you get the maximum payout as quickly as possible, you should read over the insurance policy documents, contact the insurance company early, and make notes of relevant information so that the insurance company has all the details it needs to process the claim.

If the deceased took the policy out through a financial planner then you should make contact with that person as soon as possible, and involve them in the claim process. It may be that they take over this process on your behalf, but you will still need to follow them up and promptly provide them with any additional information that they may require. If the financial planner is not helpful, then you should request of copy of the planner’s file, on which you will find helpful information to assist with the claim.

Other insurance policies

The deceased may have held a number of insurance policies over particular assets such as:

  • Home and contents insurance;
  • Motor Vehicle insurance;
  • Landlord’s insurance; and
  • Portable Items insurance.

You should try and get a copy of each policy held by the deceased. The items and assets covered by these insurance policies need to be maintained, secured and preserved until they can be formally dealt with under the deceased’s Will or under the rules of intestacy (if there was no Will). 

To do this effectively, it is usually a good idea to:

  • Check the existing insurance policies to make sure that the deceased’s assets are appropriately covered;
  • Maintain or update these policies to ensure continuation of an appropriate level of insurance coverage; and
  • Avoid taking any steps to void or cancel any insurance policies, unless this is specifically intended.

If you are unsure whether to maintain a particular insurance policy, you may wish to seek specific advice from an insurance broker or lawyer.

Read over the insurance policy documents, contact the company early, and make notes of relevant information.

Apply for probate or letters of administration

What is probate?

’Probate’ is the official recognition that a Will is legally valid.

The ’Grant of Probate’ is a document which certifies that the Supreme Court recognises that the document presented is the last valid Will of the deceased, and that the executor(s) now have the authority to deal with the estate.

The Grant of Probate allows the executor(s) to collect the assets and pay any debts of the deceased, and then to distribute the estate as directed by the Will.

To understand whether probate will be necessary, call us on 1300 654 590 or email us.

What are letters of administration?

If there is no Will (or no valid Will), the next of kin may need to apply to the Supreme Court for Letters of Administration, so that they can be appointed as the administrator of the estate of the deceased. 

The person (or persons) who are able to take on the role of administrator is determined by their relationship to the deceased, in the following order of priority:

  1. Spouse/partner;
  2. Adult child;
  3. Mother/father;
  4. Brother/sister;
  5. Grandparent; or
  6. Uncle/aunt. 

Alternatively, someone may nominate themselves as administrator, and this is usually possible as long as people with a higher priority agree to the nominated person taking on this role by ’renouncing’ their priority in the role.

To understand whether letters of administration will be necessary, call us on 1300 654 590 or email us.

The public trustee

If the deceased does not have any next of kin (or no next of kin are willing to act as the executor), and the deceased did not have a Will, then the role of administrator will fall by law to the Public Trustee.

The Public Trustee in South Australia will charge a ’tiered commission’ for administering the estate, calculated on the gross capital value of the estate.

A general commission is charged for any income received by the estate and collected by Public Trustee. There are also a number of other fixed charges, for things such as preparing deeds, audits, and preparing tax returns.

Probate vs letters of administration

The main difference between probate and letters of administration is that under administration the administrator must distribute the assets of the estate (after meeting any debts and liabilities) in a manner prescribed by law (as opposed to according to the wishes of the deceased as expressed in a Will).

When will probate or letters of administration be required?

The main reason that probate or letters of administration are required is that some organisations which hold assets of the estate, or registers who record title to such assets, will not release them or record a transfer to the executor or the administrator for distribution to the beneficiaries unless they have first seen the grant from the Supreme Court.

Jointly held property

Probate or letters of administration will not be required if the deceased’s assets are held as joint tenants (not tenants in common) with another person (such as their spouse). This is because the deceased’s interest in the asset automatically passes to the surviving joint tenant, without anything further being required. For example, if a husband dies (survived by his wife), and his bank accounts, motor vehicles and real property are all held in joint names (as joint tenants), probate or letters of administration will not be required. It may be necessary to lodge a notice of death with various registries to record the passing of the joint interest to the surviving owner. This is usually a relatively simple process, and only requires a copy of the Death Certificate.

Low value assets

An estate can also generally avoid probate or letters of administration when there are some solely-held assets of low value, such as small share parcels or bank accounts. Each institution and share register has its own ’cap’ as to the value that the asset must reach before it considers that probate or letters of administration are required to transfer ownership of that asset. 

The decision process

In order to decide whether probate or letters of administration are required, the following steps should be taken:

  • A list of all assets in the deceased’s name (both solely and jointly) should be compiled.
  • If all assets are held as joint tenants, there is no need for probate or letters of administration. The assets can be dealt with by providing a copy of the Death Certificate and relevant paperwork to each organisation with which the assets are held. Each particular organisation will have its own paperwork.
  • If some assets are held solely or as tenants in common, then each organisation with which those assets are held should be contacted to determine their deceased estate transfer policy. If the value of the assets held with each organisation is under their low value threshold, then probate or letters of administration are not required. The assets can generally be dealt with by providing:
    • the Death Certificate;
    • a copy of the Will (if there is one); and 
    • relevant paperwork required by the organisation (which may include an indemnity form from the beneficiary, where there is no Will) to each organisation with which the assets are held.
  • If any of the assets which are held solely or as tenants in common exceed the particular organisation’s low value threshold, then probate or letters of administration will be required before those assets can be transferred to the beneficiary.

How to apply for probate or letters of administration

Probate or letters of administration applications can be prepared and made personally by the Executor (for probate) or next of kin (for letters of administration), or a lawyer can be engaged to prepare the application on behalf of the estate.

We can help. Call us on 1300 654 590 or email us to discuss how.

Is a lawyer necessary?

There is no legal requirement to involve a lawyer in the application for probate or letters of administration, but it is usually a good idea. What may appear a relatively simple application and administration process can quickly become complicated, and an experienced professional can save you considerable time, potential costs and a great deal of frustration and uncertainty.

The cost of engaging a lawyer to undertake this process on behalf of the estate is an expense that may be met out of the estate.

For friendly and practical assistance, call us on 1300 654 590 or email us.

Required documents

To prepare an application for probate or letters of administration the following documents will be required:

  • The deceased’s Last Will (original) (if applicable);
  • Death Certificate (original);
  • Records of all assets of the deceased and their value at the time of death, including:
    • Bank statements;
    • Share dividend statements;
    • Superannuation fund statements;
    • Certificate or confirmation of title;
    • Registration papers of motor vehicles; and
    • Copies of any relevant agreements whereby the deceased is owed money (loan agreements, mortgages, etc); and
  • Records of all debts/liabilities of the deceased, including:
    • Mortgage statements;
    • Copies of any relevant agreements whereby the deceased owed money to someone else;
    • Outstanding bills (outstanding as at date of death); and
    • Funeral expenses.

A copy of the Death Certificate and the original Will (for probate) are submitted with the application, and the Court retains these documents. The issued Grant of Probate or Letters of Administration is evidence of death and (for probate) the testamentary wishes of the deceased.

Application cost

The Court application fee varies from State to State. Court application fees are payable separately to a solicitor’s fees to prepare the application documents.

We can help. Call us on 1300 654 590 or email us to discuss how.

Probate

The complexity of a probate application will depend on the number and type of assets that the deceased had at the date of death, as well as the extent and nature of the deceased’s debts and other obligations.

In South Australia, a probate application is prepared and submitted online, however you will need to deposit the original Will at the Probate Registry.  The online application will produce four core documents:

  • Will coversheet;
  • Grant application;
  • Statement of Assets & Liabilities; and
  • Registrar’s Certificate(s).

Other documents that may often be required as part of the application in South Australia are:

  • Affidavit of Alias (if the deceased’s name was misspelt on the Will or if the deceased used multiple names or versions of their name);
  • Affidavit of Plight and Condition (if the Will has been altered from its original form – i.e. a staple removed); and
  • Affidavit as to Due Execution (if there are any questions as to the validity of the Will or the testamentary capacity of the deceased – this affidavit will usually be required for estates that have been caveated).

In New South Wales, applications for probate should be made within six months of the date of death of the deceased. Applicants need to lodge the following documents:

  • Original Summons (UCPR Form 111);
  • Two copies of UCPR Form 112;
  • The affidavit/s required under Part 78 of the Supreme Court Rules 1970 (NSW); 
  • Two copies of any supporting documentation required by the Court; and
  • The original Will and any original Codicil(s).

We can help. Call us on 1300 654 590 or email us to discuss how.

For New South Wales estates – account to the Court

In New South Wales, the executor or administrator of an estate may be required by the Supreme Court to account to the Registrar of the Court. 

This generally occurs:

  • When the executor/administrator (or one of them) is a solicitor or an accountant;
  • When the executor/administrator (or one of them) is a creditor of the estate; or 
  • Where any of the beneficiaries are minors or charities, with some exceptions.

If this applies to you, you will be notified by the Court.

If you are required to account to the Court, you will need to first file an inventory of the estate and then later prepare and file accounts of the estate as directed by the Court. 

We can help. Call us on 1300 654 590 or email us to discuss how.

Superannuation death benefits

If the deceased had superannuation, the deceased’s superannuation entitlements (plus any applicable life insurance held within superannuation) convert to ’death benefits’ at the time of the deceased’s death.

You will need to make enquiries as to who is entitled to receive the death benefits. The actual recipient of the superannuation death benefits will be determined based on whether or not a valid binding nomination was in place at the date of death. It is common for couples to nominate their surviving spouse or partner as the recipient of all the death benefits, or to nominate their estate as the recipient (in which case the death benefits will be dealt with together with the rest of the estate). 

If no valid binding nomination is in place, the trustee of the superannuation fund will have discretion to pay to any one or more of the deceased’s ’superannuation dependants’, or alternatively to the deceased’s estate.

’Superannuation dependants’ for the purposes of death benefits payments will usually be:

  • The deceased’s spouse or de facto partner;
  • A child of the deceased that is under 18 years old;
  • Any person who was financially dependent on the deceased; and
  • Any person with whom the deceased had a relationship of financial interdependence. 

Certain superannuation dependants have the option to take the death benefits as either a lump sum or a pension. Some funds also permit the deceased to specify in advance (via a nomination) how the death benefits are to be paid. 

If you are eligible to receive death benefits you should seek advice on the most tax-effective way of receiving those benefits. 

We can help. Call us on 1300 654 590 or email us to discuss how.

 

To download a PDF of our booklet (including our contact checklist), enter your email below.

 

The information contained in this post is current at the date of editing – 20 March 2024.

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