Hartwell Legal

The affairs of persons who have died are known as ‘deceased estates’.

When lawyers refer to a ‘deceased estate’ this term covers everything that needs to be done to lay the person to rest, wind up their affairs and distribute their assets.

This is usually a process involving many steps over many months and families need the guidance of an experienced and empathetic lawyer to achieve the result in a timely and cost efficient manner.

The common steps are:

  • Organise organ donation, funeral and burial or cremation
  • Arrange payment for these services from the deceased person’s assets
  • Arrange a formal Death Certificate from the Registry of Births, Deaths and Marriages
  • Find out if there is a Will, or if there is an intestacy (i.e. no Will)
  • Identify all of the assets and debts of the deceased person
  • Secure the assets of the deceased, this can be as basic as ensuring the house is locked, no dripping taps and the insurer is notified or as complex as maintaining a business or an investment
  • Notify all stakeholders of the person’s death, including all government authorities (such as Medicare, Centrelink, DVA, Passport office, ATO), asset holders (banks, share registries, employer), creditors, etc.
  • Notify creditors to hold off enforcing debts until there are funds available for payment
  • Obtain the authority of the Supreme Court of Victoria to administer the estate. This is a formal court process which involves either presenting the Will to the Probate Registrar and proving that the Will is the last valid Will of the deceased person (called probate) or proving there is no Will and therefore who is, then, entitled to administer the estate and who is entitled to the assets of the estate (called Letters of Administration)
  • Collect the assets of the deceased, such as closing bank accounts, selling or transferring shares and real estate
  • Pay the debts of the estate, including any tax
  • Distribute assets in accordance with the Will or in accordance with the rules of intestacy (this is a formula in the legislation which sets out who receives what if a person does not leave a Will)
  • Arrange final tax returns, etc.
  • Wind up the estate
Hartwell Legal Service – Deceased Estates
When there is no Will:

In cases where the deceased family member does not have a Will, Katerina provides advice about obtaining Letters of Administration, which is the court’s authority to administer the estate.

This involves advice about who is entitled to apply for it and who is entitled to receive the assets and money at the end.

This can be a difficult process, particularly when there is a blended family involved.

When there is a Will:

When a person dies leaving a Will with a nominated executor (i.e. a person who has been appointed to administer the Will), Katerina will help the executor to rigorously, but prudently and cautiously follow the terms of the Will and to ensure beneficiaries do not become upset.

Executors need to obtain probate of the Will, which is court confirmation of their authority to act. This also provides confidence to the banks, share registries, land registry etc. that the executor’s authority has been officially verified. Everyone involved can then rest assured knowing the executor has genuine authority to handle the deceased estate.

The executors’ role is a difficult one as they are dealing with emotionally distressed families, trauma and grief. Executors, often, face overwhelmed or disappointed beneficiaries who may place unreasonable or badly informed expectations onto the executors. There may also be financial hardship involved.

Having a good lawyer advising the executors can help to reduce the risk of a dispute or falling out, which, in turn, is extremely expensive, stressful and time consuming. Good advice will ensure the estate is administered in the shortest possible time and in a cost effective manner.

Katerina, frequently, advises families and beneficiaries of the Will about their rights and how to negotiate with executors, who may not be doing their job well enough for whatever reason, or to clarify any misunderstandings.

When the Will does not appoint an executor or the executor cannot act, an appropriate person can apply to the court for Letters of Administration to give effect to the other terms of the Will.

Administration of the estate:

Once probate or Letters of Administration are obtained, Katerina will help collect all of the assets, pay all of the debts and distribute the assets to the correct beneficiaries.

She will help to wind up affairs so no loose ends are left behind. This includes wrapping up everything, which may be as substantial as preventing identity theft and as minor as obtaining valid refunds on anything outstanding (such as driver licences or memberships). Engaging Hartwell Legal's services will save you a lot of money, time and trouble.

Click here for a flowchart of the Duties of Executors (also applies to administrators).

Estate Disputes:

Sometimes a Will is not clear in its meaning. Doubts or disputes can then arise about the intentions of the deceased person.

Katerina helps families to find out the exact meaning and to resolve the dispute.

Disputes can also arise about whether a Will is valid. There may be questions or doubts about:

  • Whether the Will was properly executed (i.e. was it signed, witnessed and dated? Were the formal requirements set out in the Wills Act complied with? Is it enough to make the Will valid or invalid?)
  • Did the willmaker know what they were signing? Did they read and approve the contents? Was their eyesight good enough? Was their English good enough? Or did someone hand them the document and order them to sign it?
  • Did the willmaker have capacity to understand what they were signing? (For example, the willmaker was not affected by any illness, such as dementia or a mental health issue.)
  • Did the willmaker sign the document of his or her own free will, or were they coerced or pressured?
  • Has another person tampered with the Will?

Another type of estate dispute can arise when the meaning of the deceased person’s Will is understood, but surviving family members are not happy with the terms and wish to challenge the Will to receive a fairer allocation.

When this occurs Katerina can assist either the executors to defend the terms of the Will or the beneficiaries to mount a challenge.

Regularly acting on both sides of this scenario adds depth to Katerina's expertise, which can then be used to the client’s advantage.

Katerina’s role is to assist families and executors to negotiate this maze at a stressful and sad time in their lives.

Katerina’s expertise has assisted many clients through complex situations, which without her guidance would have ended up in court before a judge, or become expensive and protracted.

You can read further about this here.