Attwood Marshall Lawyers Wills and Estates Associate Allison Kelly looks at why engaging a probate lawyer is crucial for ensuring a smooth and legally sound administration process for complex estates.
Losing a loved one is difficult enough without the added stress of handling intricate legal and financial processes to administer their estate. But somebody has to do it, and if you’ve been appointed an executor, it’s important to take the time to fully understand just how complex and time-consuming the role can be before you start intermeddling in the estate.
Executors have significant legal responsibilities and can be held personally liable if they mismanage an estate.
Although it’s not a prerequisite, one way for executors to better understand their role and responsibilities – especially when faced with complex probate issues or disputes among beneficiaries – is to seek advice from lawyers who specialise in this area as soon as possible.
Even the simplest estates can become incredibly complex, resulting in significant delays and costs incurred by the estate.
In particular, the increase in informal testamentary documents, such as handwritten Wills, video recordings or even text messages, can be significantly difficult to obtain probate of and usually result in an informal Will application made to the court. This application itself incurs high legal costs and can be distressing for the parties involved.
What does a probate lawyer do?
A lawyer specialising in estate administration can assist executors at any stage in their role, including:
- Arranging the disposal of the body and organising the funeral,
- Preserving the estate assets,
- Locating the original Will,
- Applying for a grant of probate or letters of administration,
- Identifying liabilities and making sure all debts are paid, including taxation obligations,
- Defending claims made against the estate, and
- Distributing the assets to the beneficiaries.
An expert lawyer can also help beneficiaries know where they stand and mediate any conflicts that arise.
In some cases, probate lawyers step in to fix a mistake before the situation escalates into legal disputes or court proceedings. The executor, for instance, may have distributed assets incorrectly, failed to meet tax obligations, or caused lengthy delays due to missing documentation or misinterpretation of the Will itself or legislation.
Even honest mistakes can have serious consequences.
What is a grant of probate?
Before a bank, government department or other institution can release a deceased person’s assets, they need to make sure the person requesting any transfer is authorised to manage the estate. Probate is the process where the Supreme Court validates the last Will of the deceased and formally grants the appointed executor the authority to take control of the estate and execute the Will pursuant to the deceased’s wishes.
Probate is usually only required when the deceased holds significant assets in their sole name. It may not be necessary if all their assets were jointly owned, as these would typically pass directly to the surviving owner.
What are Letters of Administration?
If a person dies without a Will (i.e. intestate), the process involves an application for Letters of Administration, where the court appoints an administrator to handle the estate.
Dealing with an intestate estate that does not have clear instructions can be highly complex, costly and distressing. Each state and territory has specific rules on how an intestate estate can be divided, and the courts do not consider a family’s unique circumstances or wishes.
When a lawyer needs to step in
Even well-intentioned executors or family members can run into legal trouble. Common mistakes for those who don’t engage a lawyer include poor record-keeping, misusing estate funds, disregarding the gifts made under the Will, or failing to manage conflicts of interest.
Errors like missing documents, incorrect asset valuations or problematic paperwork can prove costly and cause a court to reject applications, causing further delays.
Tensions with beneficiaries can also arise over the valuation of assets, or differing opinions on how a specific asset should be distributed, or accusations that an executor is prioritising their own interests over the beneficiaries, for example. This is particularly common when the executor is also a beneficiary.
A probate lawyer can help early on by giving clear guidance on the rights of beneficiaries and ensuring executors are fulfilling their duties properly, hopefully leading to a fair resolution that prevents the parties from heading to court.
When multiple properties, businesses, trusts or investments are involved, each type of asset comes with its own legal and administrative requirements. This can become even more complicated to manage if they are held in different states or territories, each with its own probate laws. Additional legal steps may be required if an estate includes foreign assets.
Another aspect that can be overlooked is the handling of assets held outside a Will, including superannuation, life insurance pay-outs, jointly owned real estate, bank accounts or shares, or assets held in family trusts.
In terms of superannuation, hopefully the deceased has also completed a binding death benefit nomination, setting out how they wish some or all their super benefits to be distributed after their death. But if no valid nomination exists, or multiple claims have been made, a probate lawyer can help ensure the assets are claimed correctly and distributed in line with the various laws and trust deeds involved, as well as the deceased’s assumed intentions.
The importance of estate planning
Poor estate planning is often at the heart of probate and estate administration complications.
A well-structured estate plan, including a professionally drafted Will and binding death benefit nominations (BDBNs) for any superannuation accounts you hold, can prevent disputes, delays, and unnecessary legal costs for loved ones after your death.
Estate planning lawyers are best placed to take a comprehensive view of your entire estate, including any BDBNs, self-managed superannuation funds (SMSFs), companies, family trusts, business succession or family provision considerations that are relevant to your personal situation.
If you have concerns about your own estate planning, our experienced Wills and Estates team is here to help.
Attwood Marshall Lawyers – supporting you through life’s most challenging times
At Attwood Marshall Lawyers, we help executors meet their duties, ensuring compliance with probate laws, resolving disputes before they escalate, and stepping in when mistakes have been made.
Whether you need help obtaining a grant of probate, handling cross-border estate matters, or fixing administrative errors that threaten to derail the process, having a probate lawyer by your side is crucial.
Please get in touch with our Wills and Estates Department Manager Donna Tolley on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au to discuss your matter any time.
Our lawyers are available for appointments at all our conveniently located offices at Coolangatta, Southport, Robina Town Centre, Kingscliff, Brisbane, Sydney and Melbourne.
