Dealing with the Estate
If there is No Will
Where there is no will, the Intestacy Act 2010 sets out a hierarchy of beneficiaries and procedures (see above).
If There is a Will
If there is a will, an estate will be disposed of according to what the will directs, except where there is the potential for a challenge. See ‘Challenging a Will’.
Are Probate and Letters of Administration Necessary?
What is Probate? When a person dies, leaving a will, the executor has to gather in the assets of the estate, and then give them to whoever is specified in the will. The people who get these gifts are the beneficiaries. However, there are some organisations that will not allow the executor to take the asset unless the executor shows independent proof that the will is valid and can operate on the property. The same goes for Letters of Administration.
The Supreme Court of Tasmania is the organisation that can assess the will, and if it passes that assessment then ‘Probate’ will issue – it’s a document that is accepted as proof of the entitlement of the executor to deal with the property. So, when a person dies, the executor named in the will will apply to the Court for the appropriate proof of their right to deal with the property. When they have the Probate document, they can go to the organisations that hold the assets of the estate, produce the Probate, and the organisation will let them have the asset. So Probate is the declaration from the Supreme Court that the will is valid, and registered, and that authority to deal with the estate has been granted to the executor. Letters of Administration are the same thing, but for situations where there is no will.
For more information about how to apply, see the Supreme Court of Tasmania website
After they get the Probate/Letters of Administration the executors can gather in the assets and distribute them to the beneficiaries, usually after paying out any debts due to the estate (e.g. funeral expenses).
Probate and letters of administration are usually necessary to administer a will where the estate contains things like property, large sums of money, valuable items that are not personal goods, shares, trust funds, etc. There are situations where probate and letters of administration are not necessary (see below), but are often useful anyway.
When Probate and Letters of Administration are not necessary
It is not possible to list all the situations where probate or letters of administration are not necessary. These are some standard situations, but procedure varies depending on institutional practice. In general, if the sum of money the executor is trying to claim is small, many institutions will hand it over without a Probate. Here are some typical situations:
Banks & Building Societies
Money held in a joint account automatically goes to the survivor when one account holder dies. You don’t need a Probate/Letters of Administration, you just need to prove the death to the Bank/Building Society (a death certificate).
If the account was in the deceased’s name only, they usually release enough money to cover funeral and associated expenses with a Probate/LoA.
Apart from that, Banks/Building Societies vary in when they will release money without a Probate. Sometimes they might accept the original will alone (and make a copy of it for themselves) together with written consents and indemnity forms from the family or next of kin consenting to the executor’s access to the account. This would often be the case with a simple situation – e.g. there is only one beneficiary who is also the executor. They would also want to see the original death certificate as proof that the account holder has died.
The best thing to do is to ring the Bank/Building Society and tell them the situation and ask them if they will release funds without a Probate and what documents they want to see. If the amount of money is large, it is very unlikely that they will, but each organisation has its own rules about how large the amount of money would have to be.
As with Banks and Building Societies – it’s best to ring the company and ask them whether they will release the funds without a Probate/LoA, and what documents they will want you to produce. If the sum is not over $10,000 the insurance companies will usually release the money to the executor. Life insurance policies mature on the death of the holder, and the beneficiaries are usually named in the policy itself, so it may be that the company will pay out the beneficiary directly.
If land is part of the assets of the estate then you must have a Probate/LoA before you can deal with the land.
There is only one situation where this does not apply – that is where the deceased person was a ‘joint tenant’ of the land with someone else (or a number of other people). When one joint tenant dies, their share of the land automatically becomes part of the share/s of the surviving joint tenant/s. So, if three people own one third each of a property, and one dies, the two remaining will each receive half shares of that person’s third. Upon the death of one of the remaining two, the whole of the estate will go to the remaining joint tenant.
If this is the case you still will need to fill out forms but you don’t need to have a Probate/LoA to deal with the land. The surviving joint tenant needs to fill out a Registration of An Application to be Registered Proprietor by Survivorship form and pay a fee ($138.51 as at 2021). You can download a copy of this form.
You will also need an original death certificate, the original Certificate of Title to the land, a completed lodgement form and a completed Notice of Sale form (even though the land is not being sold). This information can be found through LIST.
The forms have to be returned to the Land Titles Office at 1/134 Macquarie Street, Hobart (above Service Tasmania)
It can be a bit complicated selling or transferring shares for a deceased estate. Here is a good guide to the process and what you need to do.
You will need to consult with Service Tasmania to fill in the correct paperwork.
These can be transferred by handing them over to the beneficiary.
Bankrupt/insolvent Deceased Person
If a person dies while they are bankrupt, then their estate is responsible for discharging the debts to the creditors before any beneficiary gets anything from the estate. Only after debts are discharged will any assets be released for the executors to give out. See s. 34 Administration and Probate Act 1935.
There is no death duty in Australia at either federal or state level.