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Communtity Law Manual | A death in the family | Dealing with the deceased’s property: Wills, “intestacy”, and small estates

Dealing with the deceased’s property: Wills, “intestacy”, and small estates


Whose job is it to deal with the deceased’s property?

This is done either:

  • by the “executor” appointed under the deceased’s will, or
  • if there’s no will, then normally by a close relative who’s entitled to benefit from the deceased’s estate under the laws of “intestacy” (the laws that say who a person’s property goes to if they didn’t leave a will). The close relative gets formally appointed by the courts to manage the estate, and is then called the “administrator”.

“Personal representative” is a general term that covers both executors and administrators – in other words, it refers to whoever is doing the job of managing the estate, under a will or not. But in this chapter we’ll use the combined term “executor/administrator”, rather than “personal representative”.

This part of the chapter includes information about dealing with the deceased’s will (as well as what happens when there isn’t a will). To find out about making your own will, and how the directions in your will might be overridden in some cases, see the “Wills” chapter.

What property does the deceased’s “estate” include?

The deceased person’s “estate” is all their property, including their personal possessions (like clothes and jewellery), money in bank accounts, any house or other land they own (called “real” property), proceeds from insurance policies, and shares in companies.

The deceased’s estate won’t include any property that he or she owned jointly with a partner, like a house. Because they owned the property jointly (legally, this is called owning as “joint tenants”), this means that when one of them dies the other becomes the sole owner. (This is different from owning property together as “tenants in common”, which is where you each have a separate ownership share that you can pass on under your will to whoever you choose. And note that although these technical legal terms refer to “tenants”, in fact they’re about ownership, not about renting or leasing property.)

What tasks will need to be done?

The executor or other person dealing with the deceased’s estate will need to:

  • apply to the courts to get approval to deal with the property, either by getting approval for the will (called “probate”) or, if there’s no will, by getting appointed as the “administrator” for the estate (but court approval isn’t needed if it’s only a small estate)
  • get the deceased’s estate ready to distribute to the people entitled to it, by identifying all of the deceased’s property, dealing with any claims that someone might have against the estate (for example, a relative left out of the will), and paying any taxes and debts that might be due out of the estate
  • then distribute all the remaining property to the people entitled to it under the will or under the rules of intestacy.

Those tasks are all explained in the sections below.

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