Where to from here?

What happens in relation to a Will after a person’s death?

By Tammy Holzheimer – Solicitor-Director, Estates & Estate Planning

29 August 2017

There are often news articles, advertisements and social media campaigns highlighting the importance of having a Will, but not as much attention is given to what needs to be done – the immediate legal steps – following a person’s death.

In this article we look at some of the commonly asked questions our Estates team here at Commins Hendriks receives from family members.

How soon should they make contact with solicitor?

The first step is to establish if there is a Will and where it’s located.

If it’s being kept at a legal firm, as soon as possible after the death the family or executor should contact the solicitor to clarify the following:

  • the names of those appointed by the testator to carry out the provisions of the Will - the executors; and,
  • whether there are any specific directions in the will as to funeral arrangements - burial or cremation.

Does there need to be a formal reading of the Will?

A formal reading of the Will is not necessary. Executors have the ability to distribute copies of the Will to the beneficiaries or those referred to in the Will. Specific people listed in the legislation may be able to view or obtain a copy of the Will by requesting it from any person who holds the Will.

What does the executor need to do?

In consultation with the solicitor, the executor should gather all information concerning the assets and liabilities of the deceased and check with financial institutions to see whether there are any investments or any safe custody or deed packets.  Generally, the bank will open a safe custody packet in the executor's presence or with their authority.  They will advise the list of contents, but won’t hand the packet over until Probate is granted or they are satisfied the person is entitled to the contents.

Important documentation of the deceased should be compiled, such as copies of recent statement relating to assets, birth certificate and marriage certificates (if available).

What’s the process for getting a Death Certificate?

In most cases, the undertaker gives particulars of the death to NSW Births Death & Marriages. It can take at least three weeks after the death is registered before a certificate is issued.

This delay can hold up the transfer of assets and the lodgement of a Probate Application where the Death Certificate is required.

To Probate or not to Probate?

A crucial question for all persons involved in a deceased estate, is whether a Probate Application is necessary. This necessitates contacting all financial institutions and other bodies which hold assets on behalf of the deceased, and ascertaining their requirements for the releasing of the assets.

Often institutions will initially advise that a Probate Application is necessary, but by consulting a solicitor time and money can be saved.

Jointly held investments can be automatically transferred to the survivor(s) under the joint tenancy, subject to the requirements of the investment body. However, if the investments are not held as joint tenants, assets are generally frozen.

What is Probate?

Probate is in fact the actual proving of the Will in the Supreme Court. This involves the lodgement of documentation to confirm that the Will is valid, and is the Last Will and Testament of the deceased. A Probate Application will need to be lodged in the Supreme Court if the deceased had an interest in real estate in NSW, but is not necessary if the interest was as a joint tenant.

How long can the process take?

Once the Probate Application has been lodged, it can take around three to six weeks for the document to be issued. The document authorises the executors, various financial institutions and the Registrar General's office to transfer the assets in accordance with the terms of the Will.

It can take at least three to four months to finalise an estate.  If full information is not available or matters in an estate are more complex for any reason I t can take many more months. Often solicitors are criticised for the delays, when in actual fact they are simply following necessary procedures.

If you have any questions, please contact us to book an appointment on 1800 643 779.