My loved one has predeceased me……now what do I need to do to get my legal affairs in order?

Published 24 May 2017
Deane Aboud

Losing your loved one is always an emotional and difficult time. Once your loved one has passed away, it is important that you come and speak to one of our lawyers to discuss the following:

1. Whether your will is still effective or whether you need to create another will;

2. Whether we need to lodge a notice of death or;

3. Whether we need to commence proceedings with the Supreme Court in order to obtain a grant of probate;

4. Whether we need to attend to other matters which need to be resolved (such as an Enduring Power of Attorney or Guardianship for the survivor).

Your Existing Will

It is crucial that you have your will reviewed once your loved one has passed away to see whether it is still functional. Most of the time (with married couples) a well written will is still effective because there is a lapsing clause which usually provides "in the event my husband/wife predeceases me or fails to survive me then I give the rest and residue of my estate to my……" If there is no lapsing clause then you may want to consider updating your will. At Maclarens we will be able to review your will and provide you with advice as to whether your will is still effective or needs updating.

Notice of Death

Where a husband/wife own a property together as joint tenants and one dies, then we will need to prepare a Notice of Death with the Land and Property and Information Office (LPI) to remove the name of the deceased from the title. This is a simple process and will take less than a few weeks. The Land and Property Information Office (LPI) require that we attach the original certificate of title and a certified copy of the death certificate. Once the Land and Property Information Office (LPI) process the application, they will then issue a new certificate of title and the rates information will be updated.

Grant of Probate

When the deceased's property was not held in both names as joint tenants (either held as tenants in common or was held in his/her name only), then it will be necessary to apply to the Supreme Court to obtain a grant of probate. A grant of probate is the court giving the executor/s the power to carry out the wishes in the will. The general process of obtaining probate and distributing the estate is as follows:

1. In order to apply for a grant of probate we will first lodge a 'Notice of Intended application for Probate' on the online court system.

2. After 14 days from publication we can lodge an application for a grant of probate to the courts. We will prepare a number of court documents to summit to the court such as a summons for probate, affidavit of executors, probate and Inventory of property. Once these documents have been prepared we will then arrange an appointment for you to come and sign these documents. We will then need to provide the following documents to the courts:

• Original Will – Once we obtain probate, the 'original will' becomes part of the court file and the grant of probate contains a copy.

• Original death Certificate – Once we lodge the original death certificate to the courts, we will not receive the original certificate back. Prior to us lodging the original death certificate to the courts, we will provide you with numerous certified copies (which are just as good as the original). Should you wish to obtain the original death certificate, you can apply for a new certificate with Births Deaths & Marriages.

• Filing fee – You will need to pay a filing fee to the courts. The fee depends on the size of the estate.

Once the grant of probate has been obtained, the change of ownership can be recorded at the Land Property and Information Office.

3. The courts currently take 2-3 weeks to process a grant of probate. Once probate has been granted we will send a copy of the grant of probate to the executor/s and begin redemption of the estate and advertise our 'intention to distribute the estate' on the online court system. Once we have a grant of probate we can attend to the following:

•  If there is money in bank accounts we will write to the bank/s. The bank/s will normally provide us with forms for the executors to sign in order to have the account/s closed.

•  If there is a bond from a nursing home, we will write to the nursing home and request that they provide us with the deceased's bond. Most nursing homes are bound by an Industry Code of Practice where they have fourteen (14) days to release that bond once probate has been supplied.

•  If your loved one owned shares and you do not want those shares to be transferred to the beneficiary/beneficiaries then Maclarens can refer you to a stockbroker to have those shares sold. Once those shares have been sold, the funds will be released to the estate.

•   If a property was not held as joint tenants, then we will need to prepare a transmission application to transfer the property to either the executors name or the beneficiary/beneficiaries names. If we transfer the property to the beneficiary/beneficiaries then you will need to pay nominal stamp duty of $50. Once the executor/s or beneficiary/beneficiaries sign the transmission then we will lodge it with the Land Property and Information Office (LPI) and they will issue us with a new Certificate of Title. The executor has a period of two years from the date of death to sell the property free from capital gains tax.

The time taken to complete this process varies but will take a number of months. Generally the estate will not be distributed until after six (6) months from the date of death. For professional legal advice on how to get your legal affairs in order once your loved one has passed away, please contact Maclarens Lawyers on 9682 3777.