Dealing with the deceased’s property: Wills, “intestacy”, and small estates
Identifying and getting in all the property
After you’ve got formal approval from the courts to deal with the estate, you’ll need to do the following things:
- identify all of the deceased’s assets
- identify any people who might make a claim against the estate, and try to settle these claims if appropriate
- gather in all the assets and get any necessary valuations
- pay any debts the deceased had
- pay any taxes due on the estate.
Identifying the assets
The executors have to make sure that they know what all the assets in the estate are including any overseas assets. If this information is not readily available, they will need to go through the will-maker’s papers and to talk to relatives and other people who had information about possible assets. They will need to write to the banks where accounts were held, insurance companies where policies were held, share registries, and other organisations as part of that identification process.
Note: If the will-maker owned a house or piece of land jointly with another person then that house or land will not form part of the will-maker’s estate but will become the surviving person’s property by virtue of the legal rule called “survivorship”. Land in two or more names is not necessarily jointly owned. The same applies if a person dies intestate. A lawyer will need to help the surviving person transfer the property into their sole name. The survivorship rule also applies to other jointly held items such as bank accounts (see below in this section, “Waiting for the estate to be distributed / How can I make sure my partner is provided for while they’re waiting for administration of my will?”).
Gathering in all the property
Once the court has granted administration, the executors or administrators will need to show the court order to banks, insurance companies, share registers, and anyone holding or responsible for any assets of the deceased person before those organisations will release the property to the executors or administrators or deal with them. This includes dealing with any assets that are held overseas. The grant of administration will also have to be produced to the Land Titles Office together with a transmission, so that any land can be transferred to them. Once these steps are taken they will then be able to deal with the estate assets.
There are special procedures about administration where overseas assets are concerned.
Paying debts and tax
The executor-administrator must:
- make sure that all the debts owed by the deceased are paid (it may take some time to establish what all the debts are).
- file tax returns and pay any tax owed by the deceased up to the date of death and any tax for any estate income earned subsequently. They must ensure all tax liabilities have been paid or allowed for before paying out the beneficiaries.
Dealing with any claims against the estate
It’s possible that a will may be challenged as invalid, or that someone may have a genuine legal claim against the deceased’s estate. For example, a family member may have been left out of the will and so could have a valid claim under the Family Protection Act – or perhaps a neighbour who regularly helped the deceased had been promised something but didn’t get it, and so could have a valid claim under the Law Reform (Testamentary Promises) Act. If so, the executor/administrator will have to resolve these disputes before they can distribute the assets of the estate.
For the different ways in which people can challenge a will or otherwise make a claim against an estate, see the “Wills” chapter, under “Challenges to your will after you die”.