What is an Estate?
An ‘Estate’ is made up of all of the assets of a person who has died.
This may include real estate, businesses, accommodation bonds, shares, money, personal possessions, superannuation and debts owed. When an individual passes away, their estate becomes an independent legal entity – a form of trust.
An Executor is the agent who represents the Estate, and is the only person legally authorised to deal with its assets. The Executor has powers as set out in the Will, and, if required, confirmed by a Grant of Probate. The Executor is obliged to follow the terms of the Will exactly, to act fairly, and to complete the distribution of the Estate within a reasonable time frame.
What steps are required to administer a deceased Estate?
Grant of Probate
Katrina Jacobs Estate Law assists Executors with applications for Grant of Probate and Letters of Administration, in a friendly and compassionate way, mindful of the loss you have recently suffered.
Once a Grant of Probate or Letters of Administration has been obtained (or in some cases, where a Grant is not required at all), then the Estate enters the administration phase.
Administration of the Estate
During the course of administration, the Estate must pay any debts owing at the time of the deceased’s death. It must also pay legal fees, taxes and ongoing expenses accrued by the Estate. The remainder is the Net Estate, which is distributed among the beneficiaries.
The Executor’s role is often extensive, and they may need to seek professional help as they carry out their duties. Lawyers are often engaged to assist with Probate applications, disputes or other legal issues. If legal advice is needed, it does not have to be from the same lawyer who drafted the Will.
An Accountant may be needed to provide advice on some taxation issues, and to prepare a date of death tax return. A Financial Planner may be approached to advise on investing monies from the Estate, particularly if the Will creates Trusts for beneficiaries under the age of 18. Hold-ups and problems can occur at any stage – assets may not be held in the correct legal name, a probate application may be rejected, or a beneficiary may challenge the Will.
If you need help at any stage of the process, Katrina has the technical know-how to help you handle issues, no matter what the size of the Estate. Fees are made clear upfront and, where possible, are fixed to give you peace of mind.
What other services can Katrina Jacobs Estate Law provide?
Reviewing aged care refunds
If the deceased was living in a retirement village or aged care facility, then they may have paid a Refundable Accommodation Deposit, a Refundable Accommodation Contribution, or an accommodation bond. You will be presented with a 60-something page Retirement Village contract and a letter from the village advising of the refund that is due to the estate.
Sometimes, certain fees might be deducted from the refund which were not clearly set out in the contract or which are higher than expected, and clarification should be sought.
As this refund might be the largest asset in the estate, having it carefully reviewed by a legal specialist will give the Executor valuable peace of mind.
Katrina Jacobs can review the contract for you and check that the refund is correct and that each of the relevant fees and charges are clearly stated in the terms of the contract, as signed by the deceased person.
Katrina will provide an upfront fixed fee quote for the initial advice, with any subsequent work (such as negotiating with the aged care provider) to be carried out at an hourly rate.
Liaising with organisations on your behalf
Many Executors might:
- have difficulty understanding the terminology when dealing with a super fund;
- feel frustrated in dealing with the banks;
- encounter roadblocks in transferring or selling shares;
- find that a beneficiary is being demanding or difficult; and/or
- feel overwhelmed because there is so much to be done, and they are grieving the recent loss of a loved one.
Katrina can take over some or all of these tasks for you, and liaise with the relevant organisations on your behalf. She will be acting on your behalf, but you as Executor will remain in control, both of the process and of the estate funds.
Katrina will carry out this work at a competitive hourly rate which is charged to the estate.
Providing Capital Gains Tax and Stamp Duty advice
If you are selling shares or an investment property owned by the estate, or considering transferring a property directly to a beneficiary, there are likely to be capital gains tax and stamp duty implications to consider. This can be a trap for Executors (or beneficiaries) who may end up receiving a tax bill that they were not expecting.
Don’t get caught out – Katrina can advise you who pays these liabilities, how they are calculated and how they should be declared. Where required, Katrina will liaise with your accountant or a specialist estate accountant on your behalf.
Katrina can also advise on the tax and stamp duty implications of two or more different scenarios, for you and the other beneficiaries to compare and weigh up the pros and cons.
Once a decision has been made, Katrina can liaise with your conveyancer or stock broker to provide information and assist with the transfer process.
Katrina will provide an upfront fixed fee quote for these services.
Calculating final distributions
If you don’t like spreadsheets, don’t worry – Katrina loves them!
Sometimes, the calculations at the end of the administration can get pretty involved – especially if there were numerous types of assets in the estate, lots of estate expenses to pay, Capital Gains Tax to be remitted, specific gifts to be made to beneficiaries, reimbursements due to the Executor, a debt owing by a beneficiary – or a multitude of other things.
Katrina can prepare the estate spreadsheets (listing all expenditure and any income) and make the final calculations before you distribute funds to beneficiaries.
Alternatively, Katrina can check over your own calculations to make sure they are correct and nothing has been missed.
Katrina will carry out this service at a competitive hourly rate.
For more information about our fees or any of these services, please contact us.