Most often aging parents will ask one of their adult children to be the executor of their Will. And since it is quite unlikely that an adult child will decline, the responsibilities the adult child will be asked to undertake can take a toll on them, both emotionally and legally. It can be very difficult to handle the natural grief process and the legal proceedings at the same time as dealing with the loss of a parent.
During this difficult time, it is most important to remember that being an executor of the estate of a deceased parent comes second to your own mental and emotional well-being. So it is important to have a strong support network that will help you deal with both the emotional loss and the legal responsibilities. If you have siblings or a best friend, do not be afraid to enlist their help. During such a difficult time, these family members and/or friends can make a significant difference in helping you handle both your personal sorrow and the organizing and following through of the steps you will need to take to settle your parent’s estate.
First and foremost, as the executor, you need to retrieve your copy of the Will. If you do not have a copy of the Will, but you know that you are the executor, then you must secure the Will from your deceased parent’s belongings. There are several places a parent might put a Will for safekeeping. These places could include;
- Safe-deposit box at a local bank
- With their solicitor
- In a secure place in their home; filing cabinet, desk drawer or lock box
Once you have your copy of the deceased’s Will, it is important that you take it to a solicitor. If your parent(s) had a particular solicitor who drafted the Will for them, you will want to start by returning to that solicitor’s office. If the solicitor is no longer practicing, or has closed or moved their place of business, you can elect to use a solicitor of your own choosing. A solicitor can assist you through the process thereby making it much less overwhelming and intimidating.
However, if you choose to proceed on your own you must take the following steps;
- The Will must be presented to the NSW Supreme Court for a Grant of Probate
- The Court will then determine if the Will is valid and the assets can be distributed
- If the Will is found valid the Court will issue a Grant of Probate
- The Grant of Probate will allow the executor to proceed with distributing all of the assets in the Will, including real property
It is important to remember that as the executor the law requires that you apply for Probate within six (6) months of the date of death. If there is a delay in filing for Probate, the Court will expect you to present a valid reason for the delay.
Once the Court has granted Probate the executor has the responsibility of publishing a notice of intended distribution. In addition, the executor must make payments for any liabilities the estate is responsible for. During this process, it is imperative that the executor keep receipts for payment of each outstanding debt. After both of these responsibilities are completed, the balance of the estate can then be distributed as directed in the Will, by the executor.
While it is always hoped that the distribution of a deceased parent’s assets moves through the process quickly and smoothly, that is not always the case. During the process, various issues can arise such as difficulties obtaining a Grant of Probate, or the Will could be contested by a family member or friend who might have been dependent upon the deceased. Under any circumstances where a Will is contested in its entirety or in part, the process can become quite difficult and stressful. In the event that you encounter any of these obstacles, it is highly recommended you seek the professional advice of a solicitor immediately.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.