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Deceased Estates & Family Provision

What are deceased estates and what is family provision law?

Losing someone important to you is one of the hardest parts of life.  Having to sort through their estate, their assets and their liabilities while you’re grieving is a close second. Ilberys can help you manage deceased estates to ease that burden by explaining what you need to do and how you need to do it. If things are really overwhelming, we can manage the entire process for you – and we make sure you know exactly what is going on during the process.

Deceased estates and family provision laws come into play when a friend or family member passes away. When people pass away under normal circumstances (e.g. through sickness or old age), they may have their ‘affairs in order’ – but when sudden death happens, it can be up to the family to manage those affairs accordingly. ‘Affairs’ generally refers to that person’s estate: their assets and liabilities.

Who do you notify when someone passes away? What do you do about their home insurance? Is there a Will, and if so, what do you do with it? All of these questions can be extremely confusing, uncomfortable and difficult. It’s hard to know what to do in these situations, because it’s probably your first time coming in contact with deceased estate management. Ilberys can answer them and make the necessary arrangements for you.











What can Ilberys help me with?

 

Our primary aim in helping people through deceased estate law is to answer these difficult questions. We will be able to explain what you need to do, what you can do, what you can’t do, and what you should do. Plus, if it’s not possible for you to manage an estate yourself, we can take on some of the load, right up to complete administration and winding up of the estate if need be.

Find out why Ilberys has been a preferred firm in WA since 1955 with a free initial consultation- reach out through the contact form here

 

 

 

 

 

Frequently Asked Questions

As the executor, your primary obligations are to secure the assets of the estate and to make the appropriate arrangements for a funeral.

You are not expected to pay for the funeral from your own funds, and upon presentation of the original Will, original Death Certificate and an invoice from a funeral director, most banks will release funds from the deceased’s bank accounts to pay for the funeral.

However, if you or someone else does pay for the funeral, that person is entitled to be reimbursed from the estate.

Then, provided the assets are secure, once you have had some time to grieve, you can commence administering the estate and carrying out the terms of the Will. You may need to apply for probate of the Will.

The obligations of an executor are wide and are not limited to those described above. As an executor you are also required to keep detailed accounts and records of the estate. We can help with any and all stages of acting as executor and carrying out the terms of the Will, from limited advice through to complete executor and administration services. The Executor’s expenses in seeking legal advice are generally paid from the estate as an estate expense.

Probate is where the Supreme Court issues a formal document which confirms that, based on the information provided to the Court, the Will is valid and that the executor named in the Will has the authority to carry out the terms of the Will. Probate is obtained by making an application to the Supreme Court.

Not all Wills and Estates require a probate: it depends on the nature of the estate, particularly the value of it and whether there is any land in the estate that is not the subject of a joint tenancy. If you are unsure if probate is required, or if you need help in obtaining probate, call us and we can guide you through the process quickly and efficiently.

If a person dies without a Will, they die “intestate”, and the Administration Act 1903 (WA) sets out how the estate is dealt with and who is entitled to any assets.

Someone will need to apply to the Supreme Court to be the administrator of the estate. An administrator is similar to an executor, in that they are responsible for administering the estate as an executor would, except that there is no Will to follow, and instead the law sets out what must be done.

The administrator is usually someone that is entitled to some of the assets of the estate: the Court will generally not appoint another person to be the administrator. If no one who is entitled to some of the estate wishes to be the administrator, then usually the Public Trustee or a private, authorised trustee company is appointed.

The estate cannot be administered without the formal appointment of an administrator by the Supreme Court, reflected in a document called “Letters of Administration”.

The law relating to intestacy often operates in unexpected ways, and an application for letters of administration is more complicated than an application for probate. They are made more difficult to deal with when a loved one has passed away: we can provide you with the right advice to help ease the burden.

Unfortunately, sometimes you find yourself in a situation where you are left feeling confused because you have been left of the Will of someone who you thought you were close to, and whom you anticipated would leave you more than they have.

There are a few steps you can take if you believe you have grounds to contest it and we can help you decide whether you wish to make a claim.

When people talk about “contesting” a Will, they usually mean one of two things. Either:
(a) disputing whether or not the Will is valid; or
(b) even if the Will is valid, claiming an entitlement in the Estate, in addition to anything that the Will might provider (commonly called making a claim for “family provision”). 

The main grounds for disputing the validity of a Will is that either:
(a) the person who made the Will was not of sound mind, or otherwise did not have the capacity to make a Will at the time it was made;
(b) the person did not intend the document to be a Will or to have the effect of a Will; or
(c) the person was unduly influenced when making their Will, such that does not represent something that they freely made of their own choosing.

These are complex legal questions which require careful consideration and analysis to answer. If you are considering contesting a Will on these grounds, we can advise you as to the merits of the claim and otherwise the process involved.

For more information about a family provision claim, please see further FAQ entries below.

Unlike a claim disputing the validity of a Will, a family provision claim is not based on a defect in the Will or the way it was made. A family provision claim is based on the Family Provision Act 1972 (WA) (formerly the Inheritance (Family Provision) Act 1972 (WA). That Act provides that:

(a) if an eligible person satisfies the Court that the Will (or the effect of intestacy laws where there is no Will) does not make “adequate provision” for that person for their proper maintenance, support, education or advancement in life, then
(b) the Court may, at its discretion, make an order that provision be made out of the estate for that person, so that they do have “adequate provision”.

What is “adequate provision” will depend on many things, such as the nature and size of the estate, the financial circumstances of the claimant and of all beneficiaries of the estate and whether or not the deceased had a “moral duty” to provide for the claimant. We can advise you as to the prospects of any claim you may be contemplating, and explain how the process works.

Unless an extension of time is granted (which only happens in limited circumstances), you cannot make a family provision claim if 6 months have passed since a grant of probate or administration was made in relation to the estate.

Under the Act, you can make a family provision claim the following groups can make a Family Provision claim if you fall within one of the following categories:

  • A husband or wife of the deceased
  • The deceased’s former partner who was receiving or is entitled to received maintenance from the deceased
  • A child of the deceased
  • A parent of the deceased;
  • In certain special circumstances, a grandchild or stepchild of the deceased
  • In certain circumstances, a de facto partner of the deceased.

An executor needs to act within a reasonable time, usually within a year of the date of the death, to settle and wind up an estate. However, there are many circumstances which mean that an estate may take longer than this to wind up.

Unless a Court orders otherwise, an executor or administrator must follow the lawful terms of any applicable Will, and otherwise the law as set out in previous cases and legislation, such as the Administration Act 1093 (WA). If an executor or administrator is breaching these obligations, the Supreme Court can make orders to rectify any breaches, and in certain cases can remove an executor or administrator.

However, the law generally does not require an executor or administrator to follow the wishes of any particular beneficiary, and the executor or administrator is generally expected to act in the best interests of the estate as a whole, subject to any lawful terms of the Will or any applicable requirements of the law of intestacy.

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