When a loved one dies, there are so many more important things to focus on than tackling the paperwork and other administrative tasks required to finalise your loved one’s legal affairs. The only things you need to do initially are set out in our earlier blog “What to do when someone dies”. While there usually isn’t any major urgency, the task of administering the estate must be done sooner or later.
Let’s face it – this task can be overwhelming.
Many everyday Australians die without having made a will, let alone having considered what should happen to assets that may not necessarily be covered by their will. Even where a will has been made, it might be open to attack for a number of reasons.
Whether the will is up to date, out of date, informal or non-existent, there’s always administrative work to be done. Save for the simplest, most modest estates, at the very least an application must be made to confirm who is legally responsible for administering the estate (an application for Probate or Letters of Administration depending on the circumstance). This is how a personal representative is appointed.
Figuring this out can be complex, but it must be done before any steps can be taken to finalise the legal affairs of your loved one and to distribute any assets (or deal with liabilities).
All of this is complex enough that even families who aren’t facing any challenges to the process find it draining. When you add heavy grief, unresolved personal tensions, disputed claims and the threat of legal action, you can see why things can escalate and how families can end up embroiled in nasty legal battles that reverberate for generations.
We have put together a series of blogs regarding the first steps in estate administration. We hope that this information will be of help to you whether you are the personal representative, a family member of the deceased, a sympathetic supporter or someone wishing to challenge the estate.
Finding the Will
If you haven’t found it yet, keep looking – Steve Jobs
Chances are that your loved one may not have prepared a formal will. If they did, it might have been done a long time ago and may not have been updated with changed circumstances. If a formal will exists, it might be stored with their lawyer or kept somewhere ‘secure’ in their home such as a safe or in a bank safe custody.
Sometimes, people (knowingly or unknowingly) make an ‘informal will’. So what does an informal will look like?
It could look like almost anything! In Queensland, our Succession Act (Section 18 of the Succession Act 1981 (Qld)) recognises informal documents made with ‘testamentary intention’, which means that documents that are not formally signed and witnessed might still be considered a will or accepted as altering or revoking all or part of a prior formal will.
Some examples of informal wills in recent Queensland history: an unsigned electronic document found on a computer, a note on an iPad, an unsent text found on a phone near a man who took his own life, and a tape or video recording of last wishes.
Other informal documents, like lists that set out who might get which household belongings or items of jewellery, might also be taken into account. Even sticky notes attached to an item naming a beneficiary might be considered a ‘document made with testamentary intention’.
That said, please don’t go recording videos on your smartphone or run around putting Post-it notes on items around your home believing that will be ok. The legal costs of working this stuff out after the event are far greater than hiring a lawyer to make a formal will.
The recognition of informal wills in Queensland means that it is necessary to search quite broadly to see if a will or any other informal testamentary document might exist. If unsigned or electronic documents are found, it will be quite important to obtain forensic evidence about their creation, as well as their opening and saving history, in order to work out if they could or should be recognised by a court as official ‘informal will’ documents.
If you do find these types of documents, you should take detailed notes (or photos) of where you found them and then take them (or the devices on which they were found) to a specialist estates lawyer to help you with the next steps.
If you find a formal signed will, it is still necessary to search for later documents that might affect how that will operates. These could be informal documents, or they could be formal ‘codicils’, which is just an old-fashioned name for a formal document that changes a part of a prior will (for example, changing the name of an executor or adding a beneficiary).
For detailed tips on where to hunt for a will or informal will – download our free e-book “I can’t find a will – now what” on our resources page.
If there is no Will
If you have looked high and low and can’t find a formal will or an informal one then an application for “Letters of Administration on Intestacy” may be needed. To learn more about whether or not that application is needed click here or click here to book your free 15-minute consultation with us.
If there is a formal Will and no other informal documents
If you have located a formal will and you did not find any informal documents or recordings made other than the Will, then an application for “Probate” may be needed. Click here to read about what to do next or click here to book your free 15-minute consultation with us.
If you discover an informal Will seek specialist advice
Resolve Estate Law specialises in Estate Administration. If you find any ‘informal’ testamentary documents we can advise you on those and help you make the necessary court application to prove these documents as the deceased’s will. Please contact us by phone or email, or click here to book your free 15-minute consultation to discuss your next steps.
If you want more information, you will find that in our other blogs and in our free e-book resources (links to which are at the bottom of this page or on our resources page.)