Attwood Marshall Lawyers Senior Associate and Accredited Aged Care Professional, Debbie Sage, discussed with Steve Stuttle on Radio 4CRB the important topic of Estate Administration; the very difficult process which takes place after a loved one has passed away.
What are the initial steps that need to be taken after death?
For many families, when you are dealing with the death of a loved one, it can be very overwhelming trying to navigate the steps to take immediately after their death. This is often the first-time people have been put in this situation, and for many people, they do not know what to do.
The main priority immediately following someone’s death, is the respectful disposal of the body. It is usual to contact a funeral home company and make arrangements with them about collecting the body from the hospital or place of death. They will also arrange the funeral service that you and the family require.
Before contacting funeral directors, you need to determine if the deceased has pre-arranged or pre-paid funeral arrangements. Normally this paperwork will be held with the important papers of the deceased, but this is not always the case, especially in these days of electronic records. Pre-paid funeral plans are a very good way to take the stress out of having to arrange this, but it is also important your executors, spouse or family members are informed of the arrangements and know who to contact.
It is also very important to try to locate the deceased’s Will as soon as possible. The Will holds the most valuable information you need to move forward and to be able to follow the deceased’s wishes. It may contain instructions about what they had intended for their funeral, preference on cremation or burial, or if they wanted to donate their body to science. Once again, it is critical that you inform your executors where your original Will is kept and to have an accurate copy in a safe place at home so that your family can refer to this if needs be and inform the executors.
If you are unsure where the deceased’s Will is, the first place to look would be at the deceased’s last known residence and by searching personal possessions and paperwork. If this is not successful, you can try to contact the deceased’s bank to see if they held a safety deposit box or had documents held in safe custody or securities. You can also try contacting local solicitors where the deceased person resided throughout their life and ask if they hold a copy of the Will, or contact the Public Trust Office to complete a search on their online Deceased Will Enquiry Portal, in case the deceased had their Will in the custody of the Public Trustee. There are a number of other avenues you can try to locate a missing Will, however it can be a timely and costly exercise.
This is one of the reasons why it is so important for everyone to let their loved ones know where your Will is located, whether that be at home, in the possession of your lawyer, or somewhere else. Attwood Marshall Lawyers have a strongroom where we are able to safely and securely store all Wills and other important legal documents, so that our clients and their families can feel secure in knowing their most important documents are safe and can be found easily. We send a complete copy of the signed Will to our clients with advice to keep the copy of the will in a safe place and to inform their executors of its whereabouts.
The person/s named as the executor in the Will are legally appointed to make decisions on the deceased’s behalf and will take possession and control of the body from the moment of death until it has been buried or cremated.
What if the deceased died intestate (without a Will)?
If the deceased died without a Will, in most cases, the immediate family members take control of the funeral arrangements.
By not having a Will, it means there is no executor appointed to administer the estate. If required, the court may need to issue a grant which authorises one or more people to act as the administrator by way of a grant called Letters of Administration. The application process is similar to seeking a grant of probate.
Legally – a person with the highest priority to seek a grant of Letters of Administration on intestacy, from the Court, are the deceased’s spouse/de facto spouse, adult children, parents, or siblings respectively.
Attwood Marshall Lawyers are able to assist people in applying for Letters of Administration to allow you to then manage, divide and distribute the deceased’s estate.
Be careful when appointing a next of kin
It is important to note that everyone should be careful about who they elect as their next of kin on medical records. We recently had a case where the deceased died intestate (that is, did not have a Will) and had listed a friend who they had only known for a short time as their next of kin. There was an issue in relation to who the body of the deceased should have been released to by the coroner.
The person who was nominated as the next of kin was not a person with highest priority to seek a grant from the Court or represent the estate (in fact they had no standing at all as they were only a friend). However, the next of kin alleged they knew what the deceased wanted for their funeral and the coroner almost ruled in their favour, agreeing to release the body to a friend instead of immediate family members. It wasn’t until Attwood Marshall Lawyers stepped in and provided further evidence to the coroner that we were able to convince them otherwise.
This was very distressing for the family and those involved. We cannot stress enough the importance of keeping your records up to date when it comes to your next of kin information.
If the deceased had nominated a Power of Attorney; can the attorney assist with payment of the funeral?
An Enduring Power of Attorney (EPOA) is a document that only applies during someone’s lifetime. This document gives someone the power to make decisions for you, most commonly if you are no longer able to make decisions for yourself.
Power of Attorneys are often in place where the deceased is elderly or unwell and they needed someone they trusted to be able to make financial, health and/or personal decisions for them.
If there is an Enduring Power of Attorney (EPOA) in place, this can no longer be used after someone dies, as it ceases upon death.
Effectively what this means is the attorney, or any other person for that matter, should not be operating the deceased’s accounts until the official Death Certificate has been issued.
There is an exception to the rule above, and that is in the case where there are joint accounts. A joint account does not form part of the deceased person’s estate as it passes to the surviving joint account holder by way of the laws of survivorship.
How do funeral expenses get paid if you cannot access the deceased’s bank accounts?
It is common for people to think that their money will not be accessible immediately after death.
Each bank has their own process of how they deal with the payment of funeral expenses. Usually, the first step would be for the person who organised the funeral to take the funeral account into the bank to request payment. Alternatively, if you are the executor or administrator of an estate and have engaged a solicitor, the solicitor can write to the bank on your behalf to request payment of any testamentary expenses, such as the funeral account.
Certain banks may prefer to handle these payments over the counter at a branch. They may ask you to fill in forms that are then sent to their Deceased Estates Department.
No matter what the bank’s procedure may be, rest assured – the funeral account will be paid.
There is no need to instruct anyone to take money out of your account after you have passed away in anticipation of funeral expenses.
Our Wills and Estates team have often heard instances where people have told their loved ones that after they die, they must immediately go to the ATM and take a large amount of money out of their bank account to cover their funeral costs and other bills that may fall due shortly after passing.
This can cause significant problems and will only create trust issues and disputes if somebody was to prematurely remove funds from a deceased’s bank accounts. Especially in cases where there are multiple beneficiaries involved. We strongly advise against this if you want your loved ones and beneficiaries to remain amicable. This would also be in breach of the bank’s policies in relation to who can access bank accounts after death.
Disposal of the body – burial or cremation?
When it comes to deciding whether burial or cremation is the right option for a loved one, this can cause heated disputes between family members.
In regards to cremation – if there are signed instructions to be cremated (such as a Will, prepaid or pre-arranged funeral or even written signed instructions on a piece of paper) then the executor/personal representative of the deceased has a duty to ensure an application to cremate is made.
The Executor/personal representative must follow through to ensure that once permission is granted the cremation goes ahead. This may sound silly but sometimes this does not always happen!
People have the right to object to a cremation. This is where a lot of misunderstandings occur between family members and loved ones.
In Queensland, there is legislation that states that a cremation cannot be carried out if a spouse, adult child, parent, or executor/personal representative objects to the cremation.
However, this does not apply where the deceased person has left written instructions to be cremated. The deceased’s instructions or wishes overrides any objection made by their loved ones.
Who has the right to the deceased’s ashes?
This is another area where disputes arise frequently. Whoever applied for the permission to cremate the deceased has the right to their ashes, to the exclusion of all others, including the executor/personal representative at this point.
Not many people realise this so be very careful who you let sign the paperwork for your loved ones to be cremated as it should be the legal personal representative wherever possible (that is, the executor or administrator of the estate).
If you choose a burial
Where there are written instructions by the deceased expressing a wish to be buried (e.g. in a Will, prepaid or pre-arranged funeral) it is important to understand these are wishes/directions only, and is not legally binding. The deceased’s loved ones and the executor appointed in the Will, should take these wishes into consideration when making the funeral arrangements.
If you have a pre-purchased burial plot and you haven’t been buried yet and there is a dispute, it is likely the Court will order that the body be buried in the plot.
If you have already been buried and then it is later discovered that the body has been buried in the wrong place, the Court will be very reluctant to order the body to be exhumed and moved. In fact, they may not have the jurisdiction to do so if the “right place” is in another state or territory.
Who pays for the funeral?
Determining who should pay for the funeral can be quite a distressing matter for families to sort out. Some people get scared and think if they order the funeral, they are responsible for paying the invoice, but this is not always the case.
The executor/personal representative is responsible for administering the estate, so this means they are responsible for making sure the account is paid as soon as practicable.
Funeral expenses should be appropriate to the estate. This means – if it is a modest estate you would expect a modest funeral.
Extravagant or unreasonable expenses will generally not be allowed to be paid out of the estate unless the executor has permission from all beneficiaries affected by the payment of the account. An exception to this would be where you have pre-arranged your own funeral and you had capacity at the time the arrangements were planned and signed off.
What happens after the funeral has been dealt with?
The next step is to locate the Will if you have not been able to successfully do so already, although you would hope that the Will had been located by now to avoid any of the issues we have just covered with regards to the disposal of the body and payment of funeral expenses.
Applying for the Official Death Certificate
Part of the process in arranging the funeral is filling out paperwork to apply for the official Death Certificate through Births, Deaths and Marriages in your state or territory. A Death Certificate is the official copy of information the Birth, Deaths and Marriages Registry holds on register about a person who has died.
In some cases, you may see or receive what is commonly referred to as an ‘interim Death Certificate’. This could be in the form of a Certificate of Cause of Death, Medical Cause of Death or Life Extinct form. This will usually be provided by the funeral director, hospital or coroner to assist with proving death. You can use this document to assist with trying to locate information such as the Will, or to find out who the executor is, and what the deceased’s funeral wishes are.
The official Death Certificate usually takes anywhere from 2-4 weeks to receive. In some cases, it can take up to 6-8 weeks depending on the time of year. Currently in Queensland, Births, Deaths and Marriages are only accepting certain “in-person” applications in the registry to minimise exposure to COVID-19. They will accept urgent certificate applications or those providing ID to finalise an online certificate application. If you have a non-urgent application, it must be sent by post or submitted at a local courthouse. If the postal service is experiencing significant delays due to holiday season, or additional demand, this could cause delay.
In 2014, the NSW Registry of Births Deaths and Marriages performed a system upgrade which caused significant delays in issuing death certificates. People were told they may be waiting up to 10 weeks, which prevented them from finalising the affairs of their late loved ones.
Most of the time you will not need to apply for a death certificate yourself, as the funeral director will register the death and apply for a standard death certificate on your behalf as part of their service to you.
While you are waiting for the official Death Certificate, you may want to start notifying government organisations such as Centrelink, Department of Veteran’s Affairs (we recommend checking with DVA as the estate may be entitled to a funeral benefit), private health funds etc. to stop overpayments being made that the estate may need to pay back or seek refunds from.
Centrelink usually issue one more payment after someone dies (called a bereavement payment) but if you do not notify them and further payments are made, Centrelink will make a claim against the estate to recover the overpayments. They will usually go straight to the bank to obtain the funds back and do not require your authority to do so.
It is a good idea to ensure all relevant assets are insured at this point too, especially if you are the executor or personal representative, as it is your duty to protect the assets in the estate until they can be appropriately dealt with. These assets can include the deceased’s house, car, boat, jewellery, or other expensive assets that are at risk of being damaged or stolen.
We’re here to help
Attwood Marshall Lawyers is a leading estate administration and estate planning firm with one of the largest and most experienced Wills and Estates teams in Australia. We can help ensure your loved one’s wishes are protected and preserved.
Having a proper estate plan and Will in place makes it so much easier for your loved ones after you die. By having an up-to-date Will, your loved ones will know exactly what they need to do, can organise a funeral and the disposal of your body as you wish, and distribute your estate as you intended it to be.