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Probate - Distributing the Estate

probate, legal advice, wills, estate

Distribution of the estate, after the Grant of  Probate, is the final stage of the administration of an estate.  If, as Trustee, you are  the only beneficiary, well, it should be no major drama.

However, where there is more than one beneficiary,  it can get difficult.

It doesn't happen  all the time, but,  there is nothing more than the hint of money, to agitate some people.

What follows, is a discussion of some of the things you need to think about, before you undertake the distribution. It is directed mainly at the situation where there is more than one beneficiary.

Where  you are the Trustee, and only beneficiary, any of the assets can be transferred directly to you as beneficiary. This is known as an in-specie transfer.
Click  to visit the page where there is advice as to how this is done.

If there is more than one beneficiary, before, you even consider distributing the estate, after the grant of probate, it is important that you ensure that all outstanding debts of the deceased, have been paid.

Factors To Consider, Before Distribution After Probate.

Potential Family Provision Claimants - Anybody who has not received a benefit from an estate, may make a claim against the estate within 12 months of death. This is an application for a Family Provision Order.  That person has to be an eligible person, click to learn who are eligible persons.

If you are the legal representative of the estate, and not receiving any benefit from the estate, you should not distribute the estate, until at least 12 months after the date of death.

If you distribute an estate within 12 months of the date of death, you take the risk of being personally liable, if a successful claim for a Family provision Order is made.

There is a means of distributing the estate 6 months after death, and receiving protection from liability. Click to learn the way to do this.

If you have a thorough knowledge of the deceased person's affairs, you might decide to distribute anyway. There is a risk in doing this. It is your decision, but, if you decide to, at the minimum, you should obtain the written consent of every beneficiary, or potential claimants you can identify.
Click to read the requirements, to ensure you have protection from personal liability, for any claim by a beneficiary or known potential claimants, after distribution of an estate, after the Grant of Probate.

If in any doubt at all, you should not distribute an estate after probate is granted,  until at least 12 months after death.

If you receive notice of a Family Provision claim, or any claim, for that matter,  you should not distribute at all, until the claim is resolved.

Transfer of Property - It could be shares, land, or anything where a title is held. It can be directly transferred to a beneficiary. However, if it is to be sold, or you do not intend to distribute for 12 months, it should be transferred to the Trustee's name. Once it is in the Trustee's name, it can then be sold, or transferred to a beneficiary at a later date.

Bank Accounts - Most banks or financial institutions offer the facility to transfer funds directly to a nominated account. Whether you do this, will depend on the number of beneficiaries, and the complexity of the estate.

If you follow the advice not to distribute for 12 months, you should invest the money in an interest bearing account or similar. You do have the obligation to protect the assets of an estate. Most Wills provide some powers in this regard.

Taxation - You may have to do a final tax return. If it is a large estate, and it is invested, you may even have to get a tax file number and lodge a return for the estate.

Debts or Unknown Claims by Creditors - When determining the assets, you should discover all known debts. However, there may be outstanding claims by unknown creditors. Provided you distribute at least 6 months after death, and 30 days, after you advertise of your intention to distribute, you are relieved of personal liability. Click to read how.

If you are unsure as to whether you have the power to undertake a course of action in administering an estate, you should make application to the Supreme Court for approval. Failure to do so, may make you personally liable.

If you do not have familiarity with the Forms, or the estate is complicated, you should seek legal assistance in administering the estate after the Grant of Probate.

The legal costs in most cases, are not your personal liability, but are paid from the estate, before it is distributed.

Your family lawyer, or solicitor is familiar with the required procedures and forms.

For further advice, contact:

probate, wills, legal advice

Phone 02-4332 1055    Fax 02-4333 5144

email:             legal@drakegroup.com.au