There is never a “good time” to lose a loved one, however, the death of a loved one at Christmas time can bring extra stress and challenges. Attwood Marshall Lawyers Wills & Estates Senior Associate and Accredited Aged Care Professional, Debbie Sage, recently joined Robyn Hyland on Radio 4CRB to share her tips on what to do if a loved one passes away during the holiday season.
My loved one has died – what do I do?
One of the most common questions estate lawyers get asked by their clients who have suddenly lost a loved one is, “What do I do?”
Processing the emotions that come with death are difficult, however these emotions are often amplified for the person, or persons, who take on the responsibility of winding up a deceased person’s affairs and arranging their funeral.
It is important not to panic when it comes to the administration side of things and paying bills, renewals etc.
Most businesses and organisations will be sympathetic to your situation and are generally lenient in terms of paying the deceased’s bills and settling accounts when someone has just passed away. Most of them understand that the process takes time, especially at the beginning when your loved one has just passed away.
The first steps to take when someone dies
When someone passes away and their death is expected or not suspicious, their GP is notified, and a funeral director is then called upon to arrange collection of the body and assist with planning the funeral. In many cases this happens in a hospital or a nursing home and all you need to do is let the staff know which funeral home is to be contacted.
If the death is considered suspicious or was unexpected, then the process is slightly different. In this scenario, upon finding someone deceased, you must call 000 and ask for an ambulance and the police. When paramedics attend, they will be able to confirm passing. The cause of the death will need to be verified by the nearest available doctor within 48 hours. If the doctor is satisfied that the cause of death is clear, or not suspicious, they will issue a Cause of Death Certificate.
An unexpected death may need to be reported to the coroner who will investigate into the circumstances of the deceased’s passing. Every effort is made to investigate the cause of death as soon as possible, and once the examination has been completed; the mortuary will then release the body to an undertaker.
For the loved ones left behind, once the appropriate process has been followed as discussed above, the focus should turn to locating the most recent Will of the deceased. This is an imperative step because the deceased’s funeral wishes may be stipulated in the Will or their funeral information may be held with the Will, such as if they had a pre-paid or pre-arranged funeral arrangement in place.
Pre-paid vs pre-arranged funeral – what is the difference?
A pre-paid funeral is where the deceased has already made arrangements for their funeral and paid for the funeral costs in advance.
A pre-arranged funeral is where the deceased has met with and instructed a funeral director regarding their future funeral arrangements, however the costs have not yet been paid.
Who should be arranging the funeral?
It is important to be aware of who is the most appropriate person to arrange the funeral. The executor named in the Will is normally the person who should be handling the funeral arrangements as the personal representative of the estate; however, it is common for family members or next of kin who are not the executor appointed in the Will to assist or be delegated with the task of arranging the funeral.
Although most businesses close over the festive season, and particularly on public holidays, funeral homes remain open. Dedicated funeral directors are always on call to help people in this very scenario and Christmas time is no exception. The funeral directors usually take care of everything, including the necessary paperwork to obtain a death certificate.
Locating someone’s Will
Locating the deceased’s Will can be a tricky task if it is not common knowledge if someone had a Will and where it was stored.
To locate a Will, the best place to start is by searching the deceased’s home and amongst their personal papers. It can also help to look on their computer, phone, and in their emails, to see if there is a digital record of the Will or the deceased’s testamentary intentions.
The original Will is needed for the administration of the estate, if it exists.
Usually, the solicitor who has acted for the deceased previously will hold the original Will in safe custody, so contacting any solicitors who may have acted for them during their lifetime is a great place to start when trying to locate a Will.
There is no such thing as a “formal reading of the Will” in Australia. What that means is that the beneficiaries will be notified of their entitlement under the Will by the executor during the process of administering the estate.
The next step is to notify the deceased’s bank/s of their passing. Once the bank is aware of the death, they will freeze all accounts so that withdrawals cannot be made without the appropriate documentation to verify who the personal representative of the estate is and that it is a valid testamentary expense.
A bank will usually only deal with the executor of the estate, or the solicitor acting on behalf of the estate, to finalise and attend to payment of any accounts. The only exception is payment of the funeral account; however, each bank has their own policies on how this is processed.
At this stage, not a lot can be done until the official Death Certificate has been issued. The funeral director will apply for the Death Certificate as part of the funeral arrangements, which can take anywhere from 2-4 weeks to be issued, sometimes longer.
In most instances, the executor of the estate will need the Death Certificate before they can access information in relation to the estate due to privacy laws.
There may be delay when trying to deal with financial institutions or government organisations over the Christmas/New Year period, as these organisations will close on public holidays.
The executor’s duties and the administration process
An executor’s duties can be quite onerous. There’s a reason we as lawyers play such a vital role in the estate administration process, because there is a lot to be done and be aware of. There are time frames that certain tasks need to be completed by and a certain order of events that must be followed.
Help is available to support executors, and those who want assistance to administer a deceased estate should make an appointment with a solicitor who will be able to discuss the steps involved and advise whether a grant of representation will be required to deal with the assets of the estate.
At this stage the executor will need to gather as much information as possible about the deceased’s assets and liabilities. A solicitor can also assist with this.
What type of information or documents will an executor need?
Some of the key pieces of information that will be needed by the executor include:
- The Death Certificate
- Bank account and credit card details and a most recent statement if you can find one
- Details of financial advisors or brokers that the deceased had worked with
- Tax returns and details of the accountant
- Investments or business interests
- Information about shareholdings
- Details of property owned
- Rates notices, body corporate notices, etc.
- Utility accounts such as electricity and phone accounts
- Insurance policies, including house, car, life and death policies, etc.
- Details of superannuation policies
- Medicare card and number
- Private health insurance details
- Outstanding medical bills or other liabilities
- RACQ or other club memberships
- Passport and other identification certificates
- The funeral account and receipt
- And details of any other assets.
If the executor does not have all these documents, don’t worry; collect what is available and a solicitor can help sort it out with you from there.
The administration timeline
A funeral can take anywhere from one to four weeks to plan, depending on the unique circumstances of the matter. In most cases the funeral will be in the first two weeks following death.
The administration process will be able to commence once the official Death Certificate has been issued. At this point, advice should be sought to understand the scope of the administration and whether a grant is required to administer the estate.
A grant of probate is a Court sealed copy of the Will, and the process of applying for probate is where you apply to the Court to prove the Will of the deceased to ensure it is in fact the last Will of the deceased and there are no issues regarding the Will that need to be dealt with, such as capacity, undue influence, etc. The process is designed, amongst other things, to flush out any later Wills.
The process of applying for Probate usually takes three months to obtain, on average. It can be difficult to estimate exactly how long to expect the administration process to take as the following circumstances can impact the length of time:
- the complexity of the Will;
- the nature of the assets and liabilities;
- locating the beneficiaries; and
- any disputes/challenges against the estate.
These are examples of some of the factors that can cause delays, however on average, estates usually take anywhere between 6-12 months to finalise, depending which state you are in with regards to timeframes that need to be considered for anyone wanting to contest or challenge the estate.
Attwood Marshall Lawyers – we’re here to support you after losing a loved one and to help you with administering a deceased estate
If you have taken on the responsibility to administer a deceased estate and arrange a loved one’s funeral, don’t feel you need to go at it alone! From reaching out to the funeral director at that initial stage after death or reaching out to one of our suitably qualified Wills and estates lawyers, take comfort in knowing that there is support available to help you navigate this process and carry some of the burden.
Funeral directors are available during the holiday period, as are our Wills and estates team, to assist with any questions you may have during this difficult time.
At Attwood Marshall Lawyers, we have a 24/7 phone line dedicated to enquiries just like this to ensure someone can help in your time of need, even over the Christmas/New Year period. You can contact our 24/7 phone service on 1800 621 071.
If you have been named as the executor of someone’s estate, we know just how difficult and taxing this role can be. Make sure you get proper legal advice, preferably before you begin the administration of the estate and let someone help you carry the load to ensure the estate is administered as quickly as possible, and to support you throughout the process.
If you would like to discuss your estate administration matter, please contact our Wills and Estates Department Manager Donna Tolley on direct line 07 5506 8241 or email email@example.com
Queen Elizabeth ll – organised to the end! The benefits of planning and pre-paying your own funeral in your estate plan
Someone has died and you are an Executor: What you need to be aware of when dealing with a deceased person’s debts and liabilities