The Executor's Checklist

The Executors Checklist3

Here is a checklist of the first tasks you will need to undertake as an Executor of a Will. You can tick each task off as you complete it:

Arrange the Funeral

□ Does the Will provide for the funeral arrangements? If not, the Executor has the final say if there is any dispute within the family.

□ Did you pay for the funeral? Whoever pays for the funeral will need to provide you with the tax invoice/receipt so they can be reimbursed from the Estate.

Locate the Will

□ Check at the Deceased’s Solicitors’ offices. Is there a safety deposit box at the bank or at the Deceased’s home?

□ Once the Will is located, instruct a Solicitor to assist in the administration of the Estate.

Collect the Deceased’s Financial Documents

You will need to provide the following documents to the Solicitor administering the Estate:

□ The Will of the Deceased;

□ The original Death Certificate. You can arrange for the Funeral Director to obtain this;

□ Recent bank statements/pass books and current cheque books;

□ Recent credit card statements;

□ Recent utilities invoices such as electricity/telephone/rates;

□ Recent Income Tax Returns and Financial Statements of the Deceased, of any private Company in which they were involved, Trust or Partnership;

□ Insurance policies including life insurance;

□ Share Certificates;

□ Centrelink documents;

□ Partnership Agreements;

□ Trust Deeds of any Trusts, including Self-Managed Superannuation Funds (SMSF), of which the Deceased was a Trustee and/or Beneficiary – the Deceased’s accountant may be able to assist;

□ Original Title Deeds, contracts of purchase and settlement letters for real estate owned by the Deceased, if they exist;

□ The most recent Annual Superannuation Membership Statement and any Nominations re superannuation death benefit payouts; and

□ Contents of any safety deposit facilities which may be located at the Deceased’s usual Solicitors, accountants, financial advisers or bank.

Identify the Assets

□ Prepare an inventory of what you understand are the assets and liabilities of the Estate and provide it to the Solicitor. You may need the assistance of close family and friends to finalise the inventory.

Have you considered the following assets:

□ Household contents, artwork, motor vehicles, boats, caravans, real estate, cash retained in safety deposit boxes/at the Deceased’s home;

□ Time shares, shares, bank accounts, superannuation, life insurance;

□ Loyalty programs;

□ Loan accounts in any Company, Trust or Partnership in which the Deceased was involved;

□ Interest in any other Deceased Estate;

□ Outstanding employee entitlements or lost superannuation; and

□ Unpresented scratchies and lotto tickets or TAB accounts.

Notify the Relevant Authorities

You will need to notify the following Authorities of the Death:

□ The Australian Electoral Commission;

□ Private health insurers, Centrelink and Medicare;

□ Lodge a Change of Address at the local Post Office;

□ Clubs and Associations of which the Deceased was a member; and

□ Cancel Driver Licence.

You will also need to notify the following utilities/parties so that services can be disconnected and final accounts delivered:

□ Electricity and gas;

□ Mobile telephone, landline telephone and internet;

□ Any subscriptions; and

□ Consider cancelling any automatic deductions from the Deceased’s bank account.

Other Matters

□ Contact employer and other professional advisers and advise of the Deceased’s death. They may have information, documents or entitlements to provide to you.

□ Provide the Beneficiaries of the Estate with a copy of the Will.

□ Contact the Deceased’s accountant or employ another accountant to prepare an Income Tax Return to the date of death.

□ Make enquiries as to ongoing management arrangements for the Deceased’s business and SMSF and take appropriate steps where required.

□ Ask the Beneficiaries to keep a record of any expenses they pay on behalf of the Estate and provide you with receipts/tax invoices for reimbursement from the Estate.

□ Contact the house and contents insurers and find out what arrangements need to be made in regards to insurance cover.

□ Negotiate resolution of litigation.

□ Act as director of the family company which may be the trustee of the family trust or self-managed superannuation fund.

□ Fill the shoes of the appointor of the family trust.

Once an Estate of a Deceased has been properly identified and calculated, the Executor or the Solicitors acting in the administration of the Estate may need to take a number of formal steps before they are in a position to distribute the Estate to the Beneficiaries. Here is a checklist of the tasks which may need to be undertaken in the administration of the Estate.

Payment of Debts

All of the debts of the Deceased must be paid before the Estate is finally distributed.

Such liabilities may include expenses such as the following:

□ The funeral expenses;

□ The mortgage or mortgages;

□ Credit cards;

□ Utility accounts e.g. electricity, telephone and gas;

□ Income Tax Liabilities including GST and CGT;

□ Reimbursement of employment or Centrelink payments;

□ Executor’s Commission;

□ Legal fees and outlays re administration of the Estate;

□ Interest on pecuniary gifts to Beneficiaries (i.e. money not distributed to the Beneficiary within 12 months of the Deceased’s date of death, attracts interest payable by the Estate).

Obtaining Probate or Letters of Administration

Sometimes it is necessary to request the Court to make an Order that the Will is the last Will of the Deceased. This is called a Grant of Probate. Where a person has died without leaving a Will or if there is a Will but no Executor is nominated or able or willing to take up the appointment, an Application can be made to the Supreme Court. This application is called “Letters of Administration”.

□ Have you discussed the need to apply for Probate/Letters of Administration with a Solicitor?

There are strict timelines and procedures which apply when seeking Probate/Letters of Administration as follows:

□ Has notice of the intended application been advertised in the Queensland Law Reporter and in a newspaper local to the Deceased’s last address at least 14 days before the application is filed?

□ Has a copy of the notice been given to the Public Trustee of Queensland at least 7 days before filing the Application in the Supreme Court?

□ Have you prepared an Affidavit of the Executor attaching the original Will, if applicable, and the Death Certificate?

□ Have you prepared an Affidavit of Publication which attaches a copy of the advertised notice?

□ Has the Supreme Court issued a Grant of Probate/Letters of Administration?

□ Have you provided certified copies of the Grant of Probate/Letters of Administration to the organisations which required such a Grant before releasing the assets of the Deceased?

Family Provision Applications

Sometimes a Deceased’s spouse, child or dependant may make an Application to the Supreme Court for further provision to be made from the Deceased’s Estate. This usually happens where that person is of the view that the Deceased has not made sufficient provision for them in their Will. Factors which must be considered are as follows:

□ Is the person making the claim a “spouse” of the Deceased? Spouse includes a husband, wife, de facto partner or a former spouse or partner.

□ Is the person making the claim a “child” of the Deceased? This will include any biological child, step-child or adopted child of that person. A step-child ceases being a ‘child’ upon the divorce of the Deceased and the child’s parent.

□ Is the person making the claim a “dependant” of the Deceased? This means any person who was being wholly or substantially maintained or supported by the Deceased at the time of their death. This can include a parent of the Deceased, the parent of a surviving child under the age of 18 years of the Deceased, or a person under the age of 18.

There are also quite strict time limits which must be followed when making a Family Provision Application, as follows:

□ Has the Executor been notified within 6 months of the date of the death of a person’s intention to make a claim for Family Provision?

□ Has an Application for Family Provision been filed in the Supreme Court within 9 months of the date of death?

□ If you as the Executor are served with either a Notice or an Application, you should seek legal advice immediately. Such an Application could mean a need to delay distribution of the Estate pending a Court decision.

Transmission Applications

Real Estate which is held by the Deceased as at the date of death can be transferred by lodging a Transmission Application in the Titles Office.

□ Does the property need to be transferred to the Executor? This is usually done where it is intended that the property be sold as part of the Estate Administration to meet debts and to pay out the entitlements of multiple Beneficiaries. If yes, complete the Transmission Application by Personal Representative.

□ Can the property be transferred to the Beneficiary who has been named in the Will to receive that property? If yes, complete the Transmission Application for Registration as Devisee/Legatee.

Requests to Record Death

Real Estate which is held by the Deceased as joint tenant with another person will need to be transferred to the surviving joint tenant by lodging a Request to Record Death in the Titles Office.

Self Managed Superannuation Funds (SMSF)

If the Deceased has an SMSF, the Executor will need to ascertain whether a Death Benefit is payable to the Estate. If the Deceased is the only member or the last surviving member of the Fund, the Executor may need to wind up the SMSF as part of the Estate administration.

Conclusion

Estate administration can be involved, time consuming, technical and have significant tax consequences. The above action plan is intended to be indicative of the types of tasks that normally need to be undertaken. It is not exhaustive as each Estate will have its own particular requirements. Before attempting to undertake any of these steps, and if you have any questions or concerns about the role of the Executor, you should seek specialist advice from a Solicitor acting in the area of Estate Administration. We can assist you in this regard.

WARNING

This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

Liability limited by a scheme approved under professional standards legislation.

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