Assets belonging to a person who has died are called their ‘estate’. That will include real estate, bank accounts, shareholdings, motor vehicles and other property such as furniture and jewellery. Sometimes life insurance policies and superannuation assets are included in an estate.
What happens after a death?
This will depend on whether the deceased person left a will or not and the value of the estate.
This section explains how to deal with an estate if you are an executor of someone’s will or an administrator appointed by the court. It deals first with the procedures where there is a will and then where there is no will, called an intestacy.
An administrator will be required if there is no will, or if a will exists but no executor is appointed, or the appointed executor is not willing to take on the role. In this situation, the court will appoint an administrator.
There are many aspects to dealing with an estate. Certain legal procedures must be followed, and financial matters sorted out. Human relationships are never simple and death can complicate matters, especially if it is unexpected and there is no will. Even when there is a will, and seemingly amicable relations exist among the deceased’s family, lovers and friends, it may not take long for tensions to surface. Often, death can be a catalyst for exposing unresolved conflicts.
Inheritance problems resulting from complex family and personal relationships, perhaps involving adopted or ex-nuptial children, and disputes over family property, may sometimes lead to expensive and time-consuming court cases. Before considering this option, however, it is wise to get as much advice and information as you can. A court case does not guarantee anyone, except perhaps the lawyers involved, a happy outcome. In the following sections you may find useful explanations and answers to common inheritance problems as well as a practical guide to some of the rules for inheriting.
The first matter to be resolved by the executor or proposed administrator is whether Probate (where there is a will) or Letters of Administration (where there is no will) is required to deal with the estate.
Probate or Letters of Administration will always be necessary if the deceased died owning real estate, except if it is owned as joint tenants (see If the deceased owned property with someone else in the After the Grant of Probate or Letters of Administration chapter).
Generally, when an estate is very small (less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain Probate or Letters of Administration. The need for a Grant of Probate or Letters of Administration also depends on the form in which the assets are held. Some asset holders will require you to produce a Grant of Probate or Letters of Administration before they will release assets above a certain value.
If either Probate or Letters of Administration is required, a filing fee will be payable to the NSW Supreme Court, with the application for Probate or Letters of Administration, unless the estate is worth less than $100,000. The filing fee paid to the NSW Supreme Court depends on the value of the estate and is calculated as follows:
|Value of the estate||Fee|
|from $100,000, but less than $250,000||$778|
|from $250,000, but less than $500,000||$1,056|
|from $500,000, but less than $1,000,000||$1,620|
|from $1,000,000, but less than $2,000,000||$2,158|
|more than $2 million less than $5 million||$3,597|
|$5 million or more||$5,996|
The fee changes each July — the figures above were accurate as at 1 July 2021. Fees may be paid in cash, by EFTPOS, credit card, bank cheque or by money order made out to the Supreme Court. Personal cheques are not accepted.
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.
LawAccess NSW can provide you with legal information, a referral or in some cases legal advice. Some community legal centres may be able to assist but most do not provide advice or assistance with will and/or estate matters.