Distributing the estate

The online version of Rest assured: a legal guide to wills, estates and funerals in New South Wales was updated in July 2014 to reflect changes to the law about publishing a probate notice online.

Collecting assets and clearing debts

The next stage in administering the estate is collecting all the assets and paying outstanding debts. You will usually have to produce the probate document to asset-holders before they will release anything. Before you distribute any of the assets, you must make sure that all debts have been cleared. These include funeral expenses, taxes, debts to any lending institutions or private creditors, and any other outstanding administrative or legal expenses.

Advertising after the grant

As discussed previously, the law requires you to insert an advertisement before probate can be granted. This is primarily to establish whether anyone is holding a will made by the deceased that is dated after the date of the will that has been advertised. As with a notice of intention to apply, anotice of intended distribution may now be published online.

The Supreme Court website has frequently asked questions about publishing a probate notice including which notices can be published online.

In addition, under section 92 of the Probate & Administration Act 1898 and section 93 Succession Act 2006 another advertisement can be inserted after probate has been granted. It is not mandatory, but it is recommended in most circumstances unless the executor is the sole beneficiary. The purpose of this advertisement is to allow the executor (or administrator) to make distributions from the estate without liability provided the requirements of the section are followed. It is recommended that a lawyer is consulted regarding this provision.

The position is identical for an administrator if there is no will (see Applying for a grant of Letters of Administration).

A new section 92A of the Probate & Administration Act 1898 allows an executor administrator to make maintenance distributions within 30 days of death. The section only applies if the beneficiary was wholly or substantially dependant on the deceased person and will be entitled to all or part of the estate if the beneficiary survives the deceased by 30 days or other period specified in the will. The distribution can be made even if there is knowledge of an application for a family provision order. The amount of any such distribution must be deducted from any share the person becomes entitled to. Again it is suggested a lawyer is consulted before this section is used.

Distributing the estate

Subject to section 92A, once the deceased's assets have been collected and any outstanding debts cleared, you can begin to distribute the proceeds or transfer specific assets according to the instructions in the will or the intestacy rules. Items such as personal belongings may be distributed soon after the person's death, once their value has been assessed.

Should I use a lawyer?

When deciding whether or not to use a solicitor, you should consider your level of expertise and confidence in dealing with other people's money, paperwork and the legal system. The role of executor is a responsible one and it should not be carried out casually. If you decide to arrange for a solicitor to administer the estate on your behalf, the costs (provided they are reasonable) will be met from the estate.

If you have any problems or if things are more complicated than you originally thought, you should consult a solicitor, or seek advice from your nearest community legal centre. You may also get professional advice from an accountant, especially if you have any problems with the Taxation Office or need advice about accessing funds.