What to do when someone dies
Probate & Administration
When they left a will
When someone has a will
If someone has a will and you are the nominated executor, then a grant of probate may be required.
Probate is a court process where the Court confirms the final will and formally appoints the executor as the legal personal representative of the Estate. Until probate is granted, you are not the executor.
It is important that you do not deal with any of the deceased’s assets or money until you have spoken to an experienced solicitor in this area.
Probate is not required in all cases. It is required if the person owned property in their own name or as a tenant in common with someone else. It is not required if their assets were held as joint tenants.
Some small estates may not require probate at all.
In order to obtain a grant of probate you need to be the person nominated as an executor or substitute executor. If none of those people are willing or able to apply, contact LS Legal and we will discuss what is required.
When they did not have a will
When someone dies without a will, they die intestate. A grant of letters of administration is required instead of a grant of probate.
In order to determine who may obtain letters of administration (and be appointed the formal legal representative of the estate), it is important to determine who is entitled to the estate.
The Law sets out the class of beneficiaries. The Court requires someone who has an interest in the Estate to apply for the grant of letters of administration.
The class of beneficiaries is “all or nothing”. If there is someone in the category, then that person(s) are the beneficiaries. If there is no one in any of the categories, then it may go to the State or someone else under special circumstances.
Categories of beneficiaries in NSW:
- Spouse (married, de facto or former)
- Spouse and children from another relationship
- brothers and sisters (including nieces & nephews of deceased brothers & sisters)
- aunts & uncles
The fees for obtaining an uncontested grant of probate or uncontested grant of letters of administration is set by legislation. We are not permitted to charge any higher than the schedule fees, which depend on the size of the Estate and are as follows:
Less than $30,000 – $560 plus $13.33 per $1,000
Exceeding $30,000 but less than $150,000 – $960 plus $5.90 per $1,000 greater than $30,000
Exceeding $150,000 but less than $1,000,000 – $1670 plus $4.47 per $1,000 greater than $150,000
Exceeding $1,000,000 but less than $3,000,000 – $5,470 plus $1.66 per $1,000 greater than $1,000,000
Exceeding $3,000,000 but less than $5,000,000 – $8,800 plus $1.10 per $1,000 greater than $3,000,000
Exceeding $5,000,000 but less than $10,000,000 – $11,000 plus $0.90 for each $1,000 greater than $5,000,000
Exceeding $10,000,000 – $15,500
(exclusive of GST)
Costs for administration are not regulated and our standard rates apply.
Administration is essentially everything to do with gathering in the assets, selling items, transferring assets and funds to beneficiaries.
This includes transferring property to the executor/administrator to enable sale; arranging for the sale of shares, assistance with dealing with the assets in an efficient way and maximising the value for the Estate.
We can undertake all levels of administration from assisting you minimally to taking on most of the work.
Our standard fees apply for all administration work (although fixed fees apply for notices of death and transmission applications, and conveyancing).