If you die without a will you are considered an Intestate person. Generally a supreme court ruling is required in this situation before any ruling regarding inheritance can be made.
In this situation usually only spouses, partners and other close relatives can inherit.
In a case where there is no valid Will or the person nominated to be the executor the Supreme Court can appoint an administrator to deal with the estate.
Generally, valid Wills must have the following characteristics:
Assuming a Will meets the above criteria, it then needs to go through a legal process known as Probate before it is considered legally valid.
Probate allows an executor, named in the Will, to collect and distribute the estate in accordance with the terms of the Will.
To obtain a probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. If the application is approved, it establishes the authenticity of the Will and the capacity of the executor to administer the estate.
To obtain a Grant of Probate from the Court, the executor should make an application within 6 months of the deceased’s death.
If the application is made more than 6 months after the deceased’s death, the executor must give a reason to the Court.
NOTE: The deceased’s assets are completely frozen until Probate has been granted, however the executor can gain access to the deceased's bank account to cover the funeral costs and expenses, and any Court fees related to acquiring the Grant of Probate.
The short answer is yes, any Will can be disputed. However, every state/jurisdiction will have a process that is followed in this situation. Please ensure you seek the proper legal advise to understand what rules apply in your area.
An executor has several duties which include the following:
The sections below goes into some of the details of the each of these duties.
Please ensure that you seek proper legal guidance when carrying out any of the duties below:
Organising Funeral arrangements
Executors are required to arrange a funeral, burial or cremation for the deceased as soon as possible after the death. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will.
Administration of an estate
Executors have authority to deal with assets and liabilities of the estate after the probate has been granted by the Court. They need copies of the following in order to officially register and transfer, or sell the assets of the deceased:
Joint assets
Assets which are jointly held with another party or person do not form part of the estate and cannot be called in as part of the estate. The executor needs to identify these jointly held properties of the deceased and disclose it to the court during the application for Probate.
Superannuation
Superannuation also does not form part of the estate. It is a type of Trust and is governed by rules in a Trust deed. It can be managed as part of managed fund, or can be self managed. Superannuation funds may permit members of the fund to make death benefit nominations which are binding on the Trustee of the fund.
Payment of debts
Executors are required to pay off all the deceased’s outstanding debts after the estate’s assets have been called in and all claims have been prosecuted. They become aware of all the deceased’s outstanding debts as part of the process they go through Probate. The sequence in which these debts need to be paid off are determined by whether the estate is solvent or insolvent (depending on whether there are sufficient assets to pay all the debts). Regardless of whether the estate is solvent or insolvent, there are certain expenses which need to be paid before any debts. These include funeral expenses, expenses related to probate, and administration (i.e legal fees) expenses.
Distribution of an estate
Executors are required to distribute the estate among the beneficiaries, keeping in mind the testamentary intention of the deceased person.