What to do after someone has died a guide

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1 DEPARTMENT OF THE ATTORNEY-GENERAL AND JUSTICE What to do after someone has died a guide The death of a loved one can be a particularly difficult time for friends and family. This guide is designed to assist the reader to understand the steps to be taken after someone dies. Please note that there may be risks and liabilities associated with dealing with a deceased person s estate. Steps to be taken when someone dies: 1. Secure the property of the deceased. 2. Look through the deceased s belongings to see if a will can be found or make enquiries to find a will. 3. Determine if there are any cultural or religious sensitivities in dealing with the body. 4. Determine how the funeral costs will be paid. 5. Arrange for the person s body to be buried or cremated. 6. Apply for death certificate (this is usually done by the funeral company). 7. Executor to arrange for the estate to be administered. 1. Securing the property of the deceased Ensure that the property of the deceased is properly secured. Generally to secure the property you will need to: Ensure the residence of the deceased person is securely locked. Store the deceased s motor vehicle in a safe location (if required). Advise the relevant bank of the death and arrange for the accounts to be frozen (unless it is a joint account). Store jewellery or other valuables that might be at risk of theft in a safe location. Make sure insurances are in place for home and contents. Property of the deceased should not be taken by anyone without the approval of an executor or administrator, even if the person believes they are entitled to that property. Securing the property will assist the executor or administrator to readily identify and collect the deceased s assets when they deal with the estate. 2. Look through the deceased s belongings to see if a will can be found or make inquiries to find a will Family members or a friend of the deceased (if no family is available within the NT) should determine whether the deceased has a will. To search for a will, a person can: Look through the deceased s paperwork to see if they can find a will, or a reference to a will. Contact the Office of the Public Trustee to see if a will is registered and held by the Public Trustee. Public Trustee for the Northern Territory Nichols Place, Cnr Cavenagh & Bennett Streets, Darwin Postal Address GPO Box 470, DARWIN NT 0801 Tel Fax

2 Contact lawyers that may have been utilised by the deceased in his/her lifetime to see if they have a copy of the will. Contact the bank of the deceased to see if a will is held in a safety deposit box. Try to contact anyone else who may have knowledge of the deceased preparing a will (for example, relatives or financial advisors). 3. Determine if there are any cultural or religious sensitivities in dealing with the body of the deceased It is recommended that cultural and religious sensitivities are considered when dealing with the body of a person. Discussion with the family is the best way to do this. The Office of Multicultural Affairs has produced fact sheets which explain some religious sensitivities when dealing with the body of a deceased person: 4. Determine how the funeral costs will be paid Funeral plans and insurance When looking through the deceased s paperwork, look for funeral plans and insurance policies. If an insurance policy covers funeral expenses the insurance company will need to be contacted. There may be other forms of insurance or schemes that may assist in payment of funeral expenses as well. If death was caused by a motor vehicle accident the motor accidents compensation scheme may cover some of the funeral expenses. The Territory Insurance Office (TIO) administers the motor accidents compensation scheme and would need to be contacted. If there is no funeral plan or relevant insurance policies, the next step is to see if the estate of the deceased person can pay the funeral costs (when someone dies, their assets and outstanding debts become the responsibility of their estate). If estate is solvent If the estate is solvent (that is, assets outweigh debts) it may be possible for the estate to pay the funeral costs. It is not necessary to wait until probate or letters of administration are issued by the Supreme Court to an executor or administrator, which authorises them to deal with the estate. Payment for the funeral costs may be made from the bank account of the deceased. To arrange for this a quote should be obtained from the funeral company and provided to the bank along with the doctor s medical certificate confirming the death of the deceased (a formal Death Certificate from the Office of Births, Deaths and Marriages cannot usually be obtained until after the person is buried or cremated). Banks generally issue a cheque for the relevant sum payable to the funeral company. If estate is insolvent If the estate is insolvent (that is, debts outweigh assets) the deceased s bank can be approached to see what funds he or she may have. Even if the funds in the bank account can only partially pay for the funeral, the bank may issue a cheque payable to the funeral company for the amount that is contained in the account. It then becomes an issue for the family of the deceased to determine whether they can personally provide funds to cover the balance payable to the funeral company. It should also be noted that, even if there are creditors who want to be paid the monies they are owed, the Administration and Probate Act (Schedule 4, Part 2) provides that where an estate is insolvent, the funeral, testamentary and administration expenses have priority. 2

3 This means funeral costs are paid before, and notwithstanding, any other unsecured debts of the deceased person. Defence veterans funeral benefit It may be possible to access a Department of Veteran s Affairs funeral benefit if the deceased meets the relevant criteria. A fact sheet can be accessed at the Commonwealth Department of Veterans Affairs website: factsheets.dva.gov.au/factsheets Land councils funeral benefit Both the Northern Land Council (NLC) and the Central Land Councils (CLC) have schemes in place that provide a financial contribution to cover the funeral cost of an Aboriginal person who meets their criteria. If the deceased person is Indigenous the NLC or CLC should be contacted for possible funeral assistance. 5. Arrange for the person s body to be buried or cremated If a will is found, the nominated executor has the responsibility to organise how the deceased s body is to be dealt with. The deceased may have left specific instructions in his or her will about how their body should be dealt with. If a will is not found, it generally falls to the senior next of kin of the deceased to deal with the body. Senior next of kin are a spouse or de facto partner, son or daughter over 18 years or a parent. If the person is Indigenous, it may be the person according to customs and tradition of the community or group to which the person belongs. If there is a dispute about who has the right to deal with a deceased person s body, legal advice may be required and the matter possibly taken to the Supreme Court for a decision. 6. Apply for a death certificate from Births, Deaths and Marriages (this is usually done by the funeral company) After a person has been buried or cremated, an application for a death certificate with the Office of Births, Deaths and Marriages should be made (this is usually organised by the funeral company). 7. Executor to arrange for the estate to be administered The next step is to administer the estate, which means arranging settlement of the person s debts, taxes and funeral expenses, and distribution of the remainder of their estate. To legally deal with a deceased estate (and have the protections afforded by the law) it is necessary to obtain a grant of representation. Essentially this is authorisation by the Supreme Court for you to deal with the deceased s estate. This is essential if the estate has substantial assets such as land or other valuable assets. To determine what grant of representation you need, you should first search for a will. It is a compulsory legislative requirement that you conduct a search for a will being held by the Public Trustee. Will exists: Obtain a grant of probate A person who has been named as executor in a will may choose to administer the estate themselves or relinquish the role of executor. If no other executor has been named, or no other person is available to administer the estate, it will be administered by the Public Trustee. 3

4 If you are named as executor in the will, you will need to obtain a formal grant of probate by the Court which authorises you to deal with the estate. It should also be noted that if you are named as executor in the will, you have the right to renounce this role if you are unable or unwilling to do it. This needs to be done in writing by utilising the correct form (which can be found in the Supreme Court Probate Kit). No will exists: Obtain formal letters of administration Where a person is intestate, the Supreme Court may grant to a person formal letters of administration. The role of an administrator is the same as if the person had been appointed as an executor. The following persons may apply to administer a person s estate: the spouse or de facto partner of the deceased person one or more of the next of kin (next of kin includes children, parents and siblings of the deceased. For more information, see section 6(1) of the Administration and Probate Act) the spouse or de facto partner along with with one or more of the next of kin any person the Court thinks fit, including a creditor of the deceased person. Small Estates Where an estate is under $20,000 in net value, whether a will is in existence or not, the named executor in the will or other person wanting to administer the estate can make an application to the Supreme Court to obtain a grant of representation issued by the Registrar under section 108 of the Administration and Probate Act. The advantages of this are that the process may be less onerous and potentially less expensive than going through a full Probate or Letters of Administration process. However, this will need to be discussed with the Registrar or his/her delegate to determine requirements and costs. Engage a lawyer or do it yourself? To obtain a grant of probate or letters of administration you can choose to engage a lawyer or do it yourself. If you choose to do it yourself you will need to refer to the Probate Kit available from the Supreme Court website available at: Note: The role of executor or administrator can be complex and demanding, and there are risks involved if you wish to take on this role yourself. Please refer to the factsheet Administering an estate yourself a guide for Executors of a will if you are considering administering the estate yourself. Common misconceptions - things to know The Public Trustee only deals with estates when appointed under a will, or that have been referred to it by a Court or as a last resort where there is no other person willing to administer the estate. When someone dies without a will it does not mean that the estate must be dealt with by the Public Trustee. If someone does not have a will, their estate does not go to the Government unless there are absolutely no relatives or next of kin identified. 4

5 If someone does not have a will, their estate is divided up according to a formula set out in the Administration and Probate Act (refer to section 66 and Schedule 6). It is not at the discretion of the administrator of the estate. It is possible to deal with a small estate without a formal grant of probate or letter of administration (however there are risks associated with this approach). Jointly owned assets, such as a house or joint bank account, do not form part of a deceased person s estate. The asset will automatically transfer to the surviving owner and will form part of his or her estate when they die. The estate is responsible to pay the debts of the deceased person. These debts are not inherited by the family or beneficiaries (beneficiaries will, however, only inherit what is left after all debts are paid out); and Payments from superannuation funds do not automatically go to the estate (in many cases it goes to the person/s nominated as beneficiary by the deceased person); it will depend on the rules of the superannuation fund. Disclaimer The material in this fact sheet is provided for information purposes only and should not be relied upon for legal advice. The Public Trustee and the Northern Territory of Australia accept no responsibility for any losses arising from any use of or reliance upon the information or conclusions reached using the information. 5

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