A Guide On Settling A Deceased Estate In Australia

A Guide On Settling A Deceased Estate In Australia

A Guide On Settling A Deceased Estate In Australia

31 January 2022
Law, Blog

Supposed your loved one died and left an estate, how would you manage or divide their estate? Settling a deceased estate can be challenging, given that numerous laws guide the estate division process. Nonetheless, below are some facts you should know about settling a deceased estate

If Your Loved One Died With A Will

In the presence of a will, the named executor should apply for probate. The executor is an individual that implements the deceased wishes. Conversely, probate is a legal process that examines the authenticity of the deceased's will. During probate, the judge gives a grant of probate, a letter that allows the executor to settle the deceased estate. 

Usually, the executor starts by paying the estate's debts and taxes. After this, they transfer the estate to the beneficiaries, according to the deceased's wishes. In some cases, the executor may abscond their duties, resign or lose their ability to execute the will. If this happens, the secondary executor takes charge. If the will had one executor, one of the beneficiaries (with the consent of the other beneficiaries), can apply to be an executor. Alternatively, several beneficiaries can apply for the role, and the court chooses one to execute the estate. 

If Someone Contests Your Loved One's Will

Sometimes, a beneficiary or someone interested in the estate can dispute the deceased's will. Typically, there are several grounds that someone can contest a will. For instance, they could claim the will is fake or does not meet the legal requirements. Besides, it could be that the testator was coerced into writing the will or lacked testamentary capacity. 

The person contesting the will should inform the beneficiaries of their intent to dispute it. Usually, this sets one of two things in motion. The beneficiaries could opt for an out-of-court settlement with the person contesting the will. Alternatively, the parties could decide to go to court and await a jury's ruling. 

If Your Loved One Died Without A will 

Each Australian state has unique regulations on the division of a deceased estate if someone died without a will. More often than not, the estate goes to the surviving spouse. However, if the deceased did not have a spouse, the surviving children share the estate. Spouses and children from other relationships, parents, brothers and sisters are considered if the deceased was not married or in a de-facto union. 

Settling a deceased estate is not complicated once you understand your state's wills and estates laws. Nonetheless, a lawyer's input will come in handy. 

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