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When a person dies leaving a will, certain procedures must be followed before the estate can be distributed. In most cases, the executor will need to apply for a grant of probate from the Probate Division of the Supreme Court. Probate is the authority given by the Court to the executor to deal with the assets and liabilities of the estate. The grant of probate is usually a formality but cannot be issued until 7 days after the death of the testator.
To obtain a grant of probate, the executor will need to file a number of documents with the Court. If the documents are in order, the grant of probate will usually take between 7 - 10 days to be issued.
Where a person dies without having a valid will (dying intestate), the next of kin will need to apply to the Court for Letters of Administration. This is an order of the Court that allows the estate to be administered. In these circumstances the Court will usually appoint the next of kin who applied as administrator to distribute the estate.
Next of kin who wish to apply for Letters of Administration must go through similar steps as those required for obtaining a grant of probate.
If you die without having a valid will, your assets will be distributed in a certain order, as set out in the Intestacy Act 2010. The statutory order for distribution is as follows:
For the purposes of the Intestacy Act 2010, a spouse of an intestate means a person:
For the purposes of distribution on an intestacy, an adopted child is to be regarded as a child of the adoptive parent or parents and -
The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which the Indigenous intestate belonged may apply to the Court for an order for distribution under the Intestacy Act 2010. An application to the Court must be filed with a scheme for the distribution of the estate in accordance with the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belongs. An application for distribution in this way must be made within 12 months after administration commences, or a longer period allowed by the Court, but no application may be made after the intestate estate has been fully distributed.
In formulating an order, a Court must have regard to the scheme for distribution submitted by the applicant and the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged. An order may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order. However, no distribution that has been, or is to be used, for the maintenance, education or advancement in life of a person who was totally or partially dependant on the intestate immediately before the intestate's death can be disturbed.
Basically the duty of an executor or administrator is to collect the assets of the deceased and distribute them to the beneficiaries. How this is done depends on the will and the nature of the estate. A beneficiary does not own the property until the executor distributes the estate. Before distribution, the executor is the owner of the property. An executor has 12 months from the death to distribute an estate.
If an executor acts improperly or is not administering the estate carefully, the beneficiaries may complain to the Supreme Court. This is the only right a beneficiary has before the distribution of the estate. An executor who obtains an estate by fraud or who retains an estate is liable to account for the assets of the estate.