Distribute Assets

As soon as you have been appointed as the executor or administrator of the deceased’s estate, collected in all relevant assets, and met (or provided for) all relevant debts and liabilities, then you can start the process of distributing assets to the beneficiaries.

Distribution in Accordance with Will

If the deceased left a Will, then you will need to distribute the assets in accordance with the deceased’s wishes in the Will. There may be some complexity associated with this, particularly if the debts and liabilities required the sale of certain assets, or when a beneficiary has died before receiving the assets.

Distribution of Interstate Estate

If the deceased does not have a Will (or no valid Will), then as administrator you must distribute the assets in accordance with the entitlements set down by law.

South Australia

 

New South Wales

Ongoing Testamentary Trusts

When an executor completes the general administration of a deceased estate but there is an ongoing interest, the ‘trustee’ continues to administer the estate until it can be distributed.

This happens for instance, when beneficiaries of a Will are infants and payment is deferred until they reach 18 years, or when there is ‘life interest’ in a property or a charitable fund is set up. Trusts can be established for various reasons including providing for a disabled child, and providing funds for education or charitable purposes.

Lodge the Final Tax Return for the Deceased

The executor or administrator of the estate is required to lodge a ‘date of death’ final tax return for the deceased if:

  • Tax has been withheld from the income earned by the deceased;
  • The deceased earned taxable income exceeding the tax-free threshold;
  • Tax has been withheld from interest or dividends because no tax file number was quoted to the investment body; and/or
  • The deceased had lodged returns in prior years.

In some cases, the executor or administrator may also be responsible for lodging prior-year taxreturns for the deceased, if the deceased’s tax affairs were not up to date at the time of death.

It is best to contact the deceased’s accountant or the Australian Taxation Office directly if you are unsure of what to do. The Australian Taxation Office will only be able to provide you with general advice until you are able to satisfy them that you are legally entitled to deal with them on behalf of the deceased, i.e. by presentation of the Grant of Probate or Letters of Administration.

Remove the Deceased’s Name from Mailing Lists

It is likely that the deceased’s name is on a number of mailing lists, and it can be quite distressing to continue to receive mail for the deceased in the months (and sometimes even years) after they have died.

If you want to have the deceased’s name and telephone number removed from mailing lists, you can ask the Australian Direct Marketing Association to do it for you.

To register the details, write to:

ADMA – Do Not Contact service
Reply Paid 4054
SYDNEY NSW 2001

For Grants of Letter of Administration in South Australia – Report to the Public Trustee

In South Australia, an administrator of an intestate estate (one where there was no valid Will) is required to report to the Public Trustee on the administration (i.e. collection, realisation and distribution) of the estate within six months of the grant of letters of administration.

This is done by completing and returning a Form 66 which will be sent to you by the Public Trustee. There is also an examination fee to be paid to the Public Trustee, which is currently $210.00.

You are not required to have completed the administration of the estate within six months. However, the system of having to ‘report’ to the Public Trustee helps keep the estate administration on track.

We can help – call us on 1300 654 590 to discuss how.

Contesting an Estate

If you are the beneficiary of an estate under a Will and do not believe you have been given your fair share, or if you expected to benefit from an estate but have been left out, you may be entitled to contest the Will.

There is usually a narrow timeframe for challenging a Will, calculated either by reference to the grant of probate or the date of death. If the date of grant of probate is relevant, you can find this out by asking the executor of the estate, or by enquiring at the Probate Registry of the State within which the deceased had assets (usually the deceased’s home State).

Below is a table of people who may be eligible to make a claim for provision from an estate in each State and the time limit for a claim. If you believe that you may be eligible, you should seek legal advice about your individual situation as early as possible.

We can help – call us on 1300 654 590 to discuss how.

Table of People Entitled to Claim Provision (or additional provision) from an Estate

State The Law People entitled to claim (relationship to the deceased at time of death) General time limit for claim Assets that can be subject to a provision order

SA

Inheritance (Family Provision) Act 1972 (SA)

  • Spouse
  • Ex-spouse
  • Domestic partner
  • Biological/adopted child
  • Child of spouse or domesticpartner maintained by thedeceased
  • Biological grandchild
  • Biological parent who cared foror maintained the deceased
  • Biological siblings who caredfor or maintained the deceased

Within 6 months of the date probate or letters of administration is granted.

Extension of time may be granted upon such conditions as the court sees fit.

Personal estate only

NSW

Succession Act 2006 (NSW)

  • Spouse
  • Ex-spouse
  • De facto partner
  • Biological/adopted child
  • Child for whose long-termwelfare the deceased had aparental responsibility
  • Grandchild who was a memberof the deceased’s household
  • Any other person who waswholly or partly dependent on the deceased

Within 12 months of the date of death of the deceased.
Extension available if the applicant can show sufficient cause.

Personal and notional estate (including superannuation)

VIC

Administration and Probate Act 1951 (Vic)

No fixed eligibility requirements – court is to give consideration to:

  • any family or other relationship, including the nature of the relationship and, where relevant, the length of the relationship;
  • any obligations or responsibilities of the deceased person to the applicant;
  • any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased
  • whether the applicant was being maintained by the deceased before his/her death either wholly or partly

Within 6 months of the date probate or letters of administration is granted.

Extension for a further period by the court after hearing such of the parties affected as the court thinks necessary.

Personal estate only

WA

Family Provision Act 1972 (WA)

  • Spouse
  • De facto partner
  • Ex-spouse or former de facto partner receiving or entitled to receive maintenance from the deceased
  • Biological/adopted child
  • Biological/adopted child in the womb at date of death
  • Grandchild being wholly or partly maintained by the deceased
  • Grandchild whose parent (being a child of the deceased)had predeceased the deceased
  • Grandchild in the womb at date of death whose parent (being a child of the deceased) had predeceased the deceased
  • Parent of the deceased (whether by birth, marriage or acknowledgement by the deceased)

Within 6 months from the date that a person becomes entitled to administer the deceased estate.

Extension may be granted if the court is satisfied that the justice of the case requires it.

Personal estate only

TAS

Testator’s Family Maintenance Act 1912 (Tas)

No fixed eligibility requirements – court is to give consideration to:

  • Spouse
  • Partner (in a significant relationship)
  • Biological/adopted child
  • Ex-spouse or former partner receiving or entitled to receive maintenance from the deceased
  • Parents, if the deceased dies without leaving a spouse, partner or child

Within 3 months of the date probate or letters of administration is granted.

Extension may be granted if the court sees fit.

Personal estate only

QLD

Succession Act 1981 (Qld)

No fixed eligibility requirements – court is to give consideration to:

  • Spouse
  • De facto partner who lived with the deceased for a continuous period of 2 years ending on the deceased’s death
  • Dependant ex-spouse
  • Biological/adopted child
  • Stepchild
  • Child in the womb at the date of death
  • Dependant parent of the deceased
  • Dependant parent of a surviving minor child of the deceased
  • Person under the age of 18 years being wholly or partly maintained by the deceased at date of death

Within 9 months of the date of death of the deceased.

The court may at its discretion hear and determine an application if a grant has not been made.

Personal estate only

There is no set amount that you may be entitled to if you challenge a Will or a distribution of assets by an administrator. The Court must take into consideration a number of factors to determine what each person is entitled to from the estate.

In South Australia the Court must consider whether the applicant has been left without adequate provision for their ‘proper maintenance, education or advancement in life’. In making the order the Court may, if it thinks fit, order that the provision to consist of a lump sum or periodic or other payments, (or both).

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