Knowing what to do when someone dies can be overwhelming. This blog is designed to help you work out what needs to be done first and what steps can be left till later.
The first steps really are simple:
- Working out who is responsible to administer the estate
- Making funeral arrangements
- Taking emergency steps needed; and
- Obtaining and checking the death certificate.
After the funeral arrangements have been organised, you may need to take some initial emergency steps, like making sure minor children are placed into appropriate care with named guardians (or, if guardians are not named, close family members approved by the Department of Child Safety). Arrangements for the care of pets may need to be made, the home in which the deceased lived will need to be secured (with perishables removed), nursing home or hospital rooms may need to be cleared, arrangements for businesses to continue trading might need to be made, and more.
It might be necessary to arrange for funds to be available in the short term to support the deceased’s spouse and minor children or other dependant beneficiaries.
Making sure that all assets are appropriately insured (and insurers notified if a property is unoccupied) is another important initial step for personal representatives to check, even if that means paying for the premiums personally. Executors have been held personally liable to pay an estate the value of a house that burned down, because they failed to insure the house. It is better to cover the insurance cost than risk being held personally liable if the assets are lost in an otherwise insurable event!
Obtaining proof of death and checking the death certificate
Before any further steps can be taken to administer a deceased estate, there must be proof of death. This is usually provided by obtaining a death certificate.
There may be complexities in the case where no body is recovered or where a person goes missing for many years before being ‘presumed dead’. In these rare instances, it might be necessary to await findings by the coroner and to then seek a declaration from the court.
Sometimes when people die together in a ‘common calamity’, this can cause confusion about how the estate should be distributed or who should take a jointly held asset by survivorship. In Queensland, there is a requirement for any beneficiary to survive the deceased by thirty days before taking a benefit under the will or on intestacy. There is also an assumption, for legal purposes, that when people die at the same time, the older predeceased the younger. This is to determine survivorship: the younger person will be deemed to die last, so that the younger person’s estate will take the benefit of any jointly owned asset.
The death certificate can take a few weeks to issue. It is usually completed with input from the next of kin and ordered by the funeral director.
Once issued, it is important to check that the details recorded are correct and accurate. If they are not, steps should be taken to correct any mistakes. The recorded cause of death can raise additional requirements when it comes to applying for probate of a will (to get the court’s recognition that the will is legally valid). For example, if illnesses such as dementia or Alzheimer’s are listed, you may need to provide additional evidence that the will was made when its maker had testamentary capacity.
Once the four “first steps” have been taken, the next issue to consider is whether or not a Grant of Representation (a Grant of Probate if you are a named executor of the will or a Grant of Letters of Administration on intestacy if there is no will) is needed or not.
At Resolve Estate Law we are expert estate lawyers. We provide touch point estate administration advice for simple estates, through to full estate administration services for more complex estates. If you need help navigating next steps please contact us by phone or email, or click here to arrange your complimentary 15 minute call.