The term "estate" includes anything of value to which a deceased person was, or might have been, entitled to claim during his or her lifetime, which will pass to the executor. It does not include property held as joint tenants, which pass by survivorship, and some life assurance or superannuation assets that have prescribed beneficiaries.
The property of the estate may be bequeathed through a Will, or transferred through the laws of intestacy if there is no Will. A Will is the most commonly used legal instrument for the distribution of the tangible assets of a deceased person.
Administration of estates
The Will may need to be 'proven' as being the last valid Will of the deceased, by being submitted to a probate court having jurisdiction of the estate of the deceased before property can be disposed of under the terms of a Will. This process protects the executor, beneficiaries and claimants.
An Executor is a person chosen by you, the Will-maker, to carry out your wishes in managing your estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes.
Upon completion of the executorial duties, the executor may continue in the role of trustee where assets are held for children until they turn 18 or nominated age, or where income from an estate is payable to its beneficiaries during their lifetime.
An executor may be a friend, a relative, or a professional. Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden. Provided they have not intermeddled in the administration, executors may approach the Public Trustee and Guardian to administer the estate in their place.
The Public Trustee and Guardian as Executor
The Executor's role is demanding and requires a good understanding of legal, accounting and taxation requirements. By appointing the Public Trustee and Guardian you remove this burden from family and friends in a time of grief.
The Public Trustee and Guardian is an independent specialist experienced in estate administration, and will administer your estate with competence, tact, discretion, impartiality.
During the administration of your estate any money that is collected is prudently invested and earns interest at competitive rates.
The Public Trustee and Guardian has special statutory powers to deal with small estates, by simpler procedures.
The Public Trustee and Guardian will:
- Notify Beneficiaries: When a person dies, the Public Trustee and Guardian will locate the Will, arrange the funeral if required and immediately contact the beneficiaries.
- Look after the Estate: We will ensure that all assets are safe and arrange insurance protection as required. If the deceased has left property or investments that need managing, we will arrange for them to be looked after.
- Value the Estate: We will list all of the assets and liabilities. The value and/or ownership of each asset and liability in the estate will be checked by obtaining confirmation from banks, building societies, insurance companies, share registers, titles office, companies office, mortgagees, creditors, etc.
- Obtain an authority to Administer the Estate: After all the information has been gathered, it is often necessary to apply to the Supreme Court of the ACT for a Grant of Probate to administer your estate. Once probate is granted the Public Trustee and Guardian has legal authority to collect monies, pay debts, consider capital gains issues, lodge income tax returns, secure tax clearances and distribute assets to the designated beneficiaries.
- Pay all debts: Funeral expenses, creditors, income tax, estate administration fees and out of pocket expenses will be paid.
- Divide the Estate: When all the debts have been paid and the notice to creditors has expired, we will distribute remaining assets in accordance with the Will.
- Establish Trusts: If necessary, we will set up Trusts required if any beneficiary does not have legal capacity, or if there are specific instructions in the Will. We have the expertise and facility to provide ongoing administration over many years.
The Public Trustee and Guardian's fees are set by Determination of the Attorney General and are reviewed annually in accordance with anticipated changes in the Wage Price Index (WPI). As with most Public Trustees, the Public Trustee and Guardian charges a capital commission-based fee on a descending scale down to 1.1%. A number of disbursements may also be required eg court costs, conveyancing etc.
The Public Trustee and Guardian provides a complete service and has in-house expertise to deal with all aspects of your estate administration. Our fees and charges are highly competitive when compared with other full service providers.
What happens if I don't leave a Will?
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid Will or other binding declaration.
The distribution of the property of a person who dies intestate is the responsibility of the administrator of the estate. Typically the administrator is a person with an interest in the estate and is chosen by the court having jurisdiction over the person's property.
It is common for the next of kin to request the Public Trustee and Guardian to act as administrator in such cases.
If a person dies intestate with no identifiable heirs as remote as issue of cousins, under the laws of intestacy, assets will eventually be transferred to the ACT Government as unclaimed if no beneficiary is identified after a number of years.