Q. Do I really need a lawyer to sort out my loved one’s estate?
A. The answer to this is not necessarily, but it usually helps. Many people appoint their family members to act as their executor. An executor may choose to obtain legal assistance or not. If they do, the cost of doing so is usually an expense which is borne by the estate – provided there are sufficient funds in the estate this cost does not get paid personally by the executor or come out of their share of the estate.
It is possible to administer an estate without legal assistance, and there are some resources available to assist you, however many people choose not to go down this path because it can be stressful, confusing and also time-consuming. Usually administering an estate without legal assistance will take significantly longer than if it is done by a lawyer who is adept at the process. The Supreme Court, on considering a request for a Grant of Probate or Letters of Administration, will issue a “requisition” if they have any questions about the information provided or require further information. This can result in significant delays and if you wish to give yourself the best chance of avoiding any requisitions in the first place, obtaining legal assistance from the outset is the best way to go.
Some clients are happy to do all the paperwork associated with writing to various asset holders to ascertain the nature and value of the assets of the estate, filling in the forms they send out, notifying relevant third parties, paying bills for the estate and the like, but instruct a solicitor in relation to the particularly complicated parts, such as preparing the application for Probate or Letters of Administration itself, or preparing a survivorship application in respect of land held in joint names. We are happy to do as much or as little as you feel you need help with.
Q: How much does it cost to get legal assistance in respect of a deceased estate?
A: The likely cost of representation varies depending on your particular circumstances (eg the nature of the assets in the estate, whether or not there is a valid Will, whether there is any family disharmony and so on). Ellery Brookman provides an hour’s initial advice in relation to deceased estate matters for a fixed fee of $220. In some circumstances this fee may be payable later if you are in difficult financial circumstances following the death of your loved one. At the initial consultation you will meet with an experienced solicitor, discuss what is required in respect of the administration of your loved one’s estate, and discuss whether you will be able to handle this yourself or whether you require assistance. The likely cost of any assistance you require from us will also be discussed with you then.
Q: Do I have to pay up front?
A: Generally you will not be required to pay any part of your legal fees up front (apart from your $220 initial consultation fee, unless we have agreed that may be paid later due to your current circumstances) provided you authorise us to deduct our fees from any funds the estate is likely to receive in the course of administering the estate. If the estate is not likely to receive any funds (eg if the only asset is a house) you will need to fund your legal services as the matter progresses.
Q. What is Probate?
A. When you try to get money out of your deceased loved one’s account, or transfer shares, or have their super paid to you, you are generally informed that “Probate” will be required before anything can be done for you. This is basically the process of applying to register the valid Last Will and Testament of your deceased loved one in the Supreme Court of Western Australia. The Supreme Court will require a significant amount of information to consider this request, and once they are happy that all is in order, they will grant Probate to the executor. It is that document which authorises the executor to administer the estate in accordance with the Will, meaning the executor can then use the Probate document to transfer assets into the name or names of the relevant beneficiaries.
If the deceased person did not leave a Will or left a Will which did not appoint an executor, someone will still need to seek authorisation from the Supreme Court to administer the estate. If this is the case the document provided by the court is called “Letters of Administration”. It serves the same function as Probate and entitles the person to whom it is granted to administer the estate in accordance with the Will, if there is one, or the rules of intestacy.
Obtaining Letters of Administration is more expensive that obtaining Probate, which is one reason why it is beneficial to have a Will in place.
Q. Will I need Probate?
A. You need Probate if your loved one had land in their name, unless it was in joint names (as joint tenants) with someone who is still living. You also need Probate to transfer ownership of shares, vehicles, significant bank balances and super death benefits. Sometimes you might be asked for a copy of Probate “if it has been granted”. This is because some organisations like to have a copy on their file if it is in existence, but won’t make you go to all the trouble of getting Probate if they are the only one who has requested it.
Q. What happens with funeral costs?
A. If the deceased person had any money in the bank, his or her bank will usually allow you to use that, even without Probate, to pay funeral costs, if you take the invoice in to them. If you have to pay these costs yourself, they can be reimbursed out of the estate if there are some funds available in the future to do that.