When Someone Dies
Provide compassionate assistance to executors in managing and finalising an estate
What is an ‘Estate’?
- All of the property and liabilities of a person in existence after her or his death.
- Property owned jointly with another person, superannuation and life insurance proceeds, and assets of a family trust does not form part of the estate.
What is the role of an executor?
- To carry out the wishes of the will maker as specified in the Will
- Act in the best interests of the estate and all of the beneficiaries
- Manage and protect the assets of the estate until they are distributed
- Ensure that all of the liabilities of the estate are paid when appropriate
- Keep full and accurate records of how the estate has been managed and distributed and provide a summary of the financial transactions for the estate to the beneficiaries
Who pays for the funeral?
- Reasonable costs of the funeral is an expense of the estate, but the executor should be careful not to incur expenses beyond the available funds in the estate
Who can see the will?
- In Victoria, various categories of people are entitled to request a copy of a Will if it was made on or after 20 July 1998. These include (but are not limited to) certain family members, and persons named in the Will or any earlier Will
- It is usually appropriate and good practice for the executor, or the firm of lawyers appointed by the executor, to write to the beneficiaries and tell them they are beneficiaries under the Will as soon as possible
What should the beneficiaries be told?
- There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the Will are given to them
- A beneficiary is entitled to receive a copy of the Will upon request
- Failing to be open and honest in dealing with beneficiaries can lead to distrust and conflict later
What should be done with the assets of the estate?
As executor, you should:
- Make an itemised list of all the assets
- Ensure that the property has adequate insurance and that insurers have been notified of any changes (i.e. the house is vacant or the vehicle is housed elsewhere)
- Ensure that items of value are adequately secured
- Consideration should be given to what to do with all household items. Some items may be given to the beneificiaries in part satisfaction of their interest in the estate, some may be sold to second-hand dealers or given to charities or otherwise disposed of. Care must be taken in making these choices. Many executors consult with the family of the deceased before making these decisions
- Executors have an obligation to ensure that assets are not wasted and do not diminish in value
- If money is collected from the sale of assets and is not to be distributed straight away, it needs to be securely invested
- If real property is to be held for some time, consideration should be given to whether it should be rented