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In most cases, the responsibility of estate planning and distribution falls to one or more executors. An executor is someone who is either designated in a will or appointed by the court to carry out the wishes of the person following their death.
The role of an executor is often given to a trusted loved one — whether a spouse, an adult child, sibling or other close relative. In other instances the role of executor may be granted to a trusted non-relative advisor, solicitor or similar.
It’s common knowledge that an executor will distribute the deceased person’s estate among dependents, inclusive of anything of monetary value, whether real estate, investment funds, land ownership or other personal belongings. It’s less common knowledge that an executor also has the responsibility of ensuring all debts and financial obligations of the deceased person are settled.
A will should include the deceased’s wishes regarding how they believe their debts are best paid, and these settlements are to be made prior to the distribution of estate assets. If the deceased person’s debt outnumbers the total value of their estate, the executor will then proceed according to either insolvent estate provisions or bankruptcy provisions; a few key notes on both:
There are exceptions to the way debts are settled, which is why having an experienced solicitor by your side ensures that the process is handled smoothly and legally without the risk of mishandling or negligence.
What happens if a person passes without a valid will?
If someone passes either without a will or with a partially completed will, they are considered to have died ‘intestate’ (intestacy) or ‘partially intestate’ respectively.
Under the law of intestacy, those who are able to claim estate assets are as follows: spouse, parents, siblings, nieces and nephews, grandparents, uncles, aunties, cousins and the Crown — generally in that order regarding the prioritisation of inheritance.
De facto partners — those who had a genuine and close relationship with the deceased yet are unrelated — are also brought into consideration, however the assets they’re entitled to are weighed by various factors, including the relationship’s length, the degree of financial independence and their shared domestic responsibilities, among others.
Navigating intestacy is complex, particularly when multiple parties are vying for a share of the estate. As an absent or incomplete will can give rise to disputes, consider speaking with a solicitor who can advise you on the necessary steps to ensure the estate is properly distributed while minimising the possibility of conflict.
Call us for confidential, free advice.
A family provision claim refers to a legal request made by someone who believes they haven’t been sufficiently provided for in the will of a deceased family member. These claims may be filed by ‘eligible persons,’ which encompasses any potential beneficiary who has been dependent on the deceased at the time of their death — whether financially or domestically.
Eligible persons include:
To determine if someone is an eligible person, the court considers a handful of factors. These include the closeness and length of the relationship, degree of financial and/or domestic reliance, character, age and personal financial situation, alongside other considerations.
To be officially considered by the court to be an eligible person who has been unfairly left out of a will, you’ll either need to partake in mediation and/or litigation.
Mediation: Compared to litigation, mediation is a time and cost effective way to settle will disputes. During this process, a neutral third party mediator brings into account the merit of all involved parties and weighs them against the relevant legislation to determine eligibility. The mediator can then propose a mutually acceptable solution and adjust the distribution of assets accordingly.
Litigation: Mediation is generally the prerequisite for litigation; if a resolution is unable to be reached through the aid of a mediator, the case may then progress to court where a judge will determine eligibility and the associated asset distribution. Litigation tends to be long, spanning one or more years, and is generally a costly endeavour. So, while the best course of action is generally to seek a resolution through mediation, litigation should be pursued if all other options have been exhausted.
The takeaway: If you believe you’ve been unfairly left out of a will, it’s best to not worry yourself by considering the wider legal process. Instead, as a first step, document evidence that proves your dependency on the deceased and your relationship with them, then speak to one of our lawyers who can give you personalised legal advice on the best pathways forward for your unique situation.
Which debts are paid from a deceased estate?
Before the distribution of the deceased person’s estate to any beneficiary, the executor has the responsibility of ensuring that all debts are settled. Specifically, this includes:
Importantly, if debts are unable to be paid off by the deceased person’s estate, that responsibility does not fall on their dependents — as long as they aren’t co-signers on an account.
What happens if the debts cannot be discharged?
Debts are first paid in order of priority: starting with taxes and secured debts, followed by unsecured debts. Assuming the remainder of the unpaid-off assets have no co-signers, the remaining debt payments are generally not passed on to a loved one; rather, they are usually written off by creditors.
With that said, several factors come into play, including the will’s contents and state-specific probate laws. Speak with a solicitor to get a sense on how to best navigate the intricacies of the probate process and its legal implications.
Who is responsible for estate administration?
The short answer: an executor, or executors. This is the person or people who the deceased individual has decided to make responsible for the distribution of their estate. There are instances where a person passes without a will, in which case an executor is unable to be established. In these circumstances, the court typically will appoint an administrator to handle the estate.
If you’re considering filing a family provision claim, we recommend two initial steps: Document evidence that shows your dependency on the family member who has passed, and then speak with one of our lawyers who will be able to guide you forward.
We offer a free consultation. From there, if you decide to move forward with filing a family provision claim, you will be exempt from legal payments through our no-win, no-fee policy. This means that we only get paid if your case is successful, and the amount we’re paid is a predetermined, agreed-upon amount out of the case’s total compensation payout.
Our no-win, no-fee policy is there to remove the barrier between a person’s legal entitlements and receiving competent representation. In your initial consultation, our solicitors will be more than happy to speak through all the relevant information and answer any questions you may have.
Case Overview Our client’s father passed away in late 2021, leaving his property to our client. After learning that his stepmother was contesting the will,
Case Overview Our client’s father passed away in late 2019, leaving the bulk of his estate to his niece. As the sole surviving biological child
In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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