After a loved one dies, the last thing most people want to do is navigate the legal system and fill out reams of paperwork. Unfortunately, that is exactly the struggle that many families face as soon as the funeral is over. When a person passes away, their loved ones must figure out what to do with their estate, or all of their possessions that they owned before they passed away.
This involves logistical and emotional effort, but also legal know-how. While nothing can really prepare you for redistributing the property of a loved one, these insights into common challenges of settling a deceased estate can help you feel more empowered to make tough decisions.There Is No Will
For many families, settling an estate is made easier thanks to the existence of a will. A will is a legal document where a person sets out who they would like to receive their property after their death. This person is responsible for any debts, as well as additional wishes about the arrangement of the estate.
Some people refuse to make a will. Meanwhile, others who die suddenly may not have had time to think about that. According to Australian law, if a person passes away without a legal document stating how their assets will be distributed, their estate goes into intestacy.
Intestacy means that the state decides how assets are redistributed. Rules differ depending on where you are located. Usually, a court divides the assets remaining after all debts are paid among the surviving spouse and family members.
If your family is involved in an intestacy situation, you will have to go to probate court.
The best thing to do is to retain legal counsel to assist you with this process.If you can, you want to avoid this situation. If you have family members who are older or ill, encourage them to look into estate planning before it is too late. Although many people are reluctant to talk about this as it brings up complicated feelings about death, it will save surviving family members a lot of hassle and uncertainty.
You Have to Go Through the Probate Process
Many families have to go to probate court or go through the probate process after a loved one passes away. Probate court is the court system that ensures that estates are managed in accordance with the law.
When there is no will or the will is contested, the survivors of the deceased have to go through probate court. This is to decide how the assets will be redistributed. Even if there is a will, you probably need to have it confirmed by probate.
People also need to go through the probate process to secure a grant of probate. This allows you to act on behalf of the deceased concerning bank accounts, real estate, and other property. If you’ve been named an executor, deceased estate lawyers can help you through this process. That way, you can respect the wishes of the deceased.
Since most families have to go through probate, it is a good idea to research the process if you know that you may have to deal with estate management soon so that you know what to expect.
You Have to Change the Terms of the Will
Sometimes, even if there is a will, its terms may not be respected. There are a few scenarios where this can happen. The deceased person could be found to be under undue influence or not of sound mind while the will was being drawn, or family members could contest the distribution in court.
Changing the terms of the will can also happen without dramatic legal challenges. Sometimes, surviving family members decide amongst themselves to redistribute the assets differently. They may feel that someone was left out of the will unfairly. Or one person is more able to take on the deceased person’s debts than the person named executor.
For whatever reason your family decides to change the terms of the will, in Australia, you need to obtain a deed of family arrangement. This document, which an estate lawyer can help you negotiate, draws up the final arrangements that the family has agreed upon for distributing the estate.
You Have to Transfer Assets to Other People
Even in the best-case scenario, which is that the deceased person left behind a will and everyone accepts the will, there are certain legal procedures that the surviving family will have to go through to manage the estate.
During an inheritance, assets such as real estate are transferred to another person, which requires navigating some legal paperwork. One form of this process is conveyancing, which is when property ownership is transferred to another person.
Other ways of transferring real estate include joint tenancy or transmission applications. One way to make this process easier is to talk to an estate lawyer before someone passes away. They can take steps beforehand. These include adding the beneficiary’s name to a joint tenancy document to make this transfer easier.
Even after a will is drawn up, an estate lawyer is a useful person to consult when transferring real estate. They can make the process a lot easier for everyone to navigate.
Financial assets such as bank accounts or cash inheritances are easier to redistribute, but may still require filling out paperwork. Australia does not have inheritance taxes, but you may have to meet other obligations. If you are inheriting money, check with a lawyer or accountant to see what you need to do.
Settling a Deceased Estate with Little Hassle
Navigating estate management is always going to be an emotionally fraught process. But it does not need to be a legally complicated one. Families that have time to prepare can take steps ahead of time. This includes encouraging loved ones to draw up wills and agreeing amongst themselves about how assets will be distributed to prevent contestation.
Even in the best case scenarios, settling an estate will involve interactions with the legal system through the probate process, property conveyance, and other processes. The best thing to do is to retain legal counsel that you trust and who can help you navigate settling a deceased estate in a fair way.