Below is Chapter 4 of our ‘What to do when someone dies’ booklet. To read the other chapters of our booklet, click the links below:
- Chapter 1 – What to do within hours
- Chapter 2 – What to do within days
- Chapter 3 – What to do within weeks
- Chapter 5 – Further information
Distribute assets
As soon as you have been appointed as the executor or administrator of the deceased’s estate, collected in all relevant assets, and met (or provided for) all relevant debts and liabilities, then you can start the process of distributing assets to the beneficiaries.
Distribution in accordance with Will
If the deceased left a Will, then you will need to distribute the assets in accordance with the deceased’s wishes in the Will. There may be some complexity associated with this, particularly if the debts and liabilities required the sale of certain assets, or when a beneficiary has died before receiving the assets.
Distribution of interstate estate
If the deceased does not have a Will (or no valid Will), then as administrator you must distribute the assets in accordance with the entitlements set down by law.
South Australia
In South Australia the Administration & Probate Act 1919 governs an intestate estate. This Act applies a formula to distribute assets based on the dependants of the deceased at the time of death, as follows:
- First, if there are no children, the spouse (married or de facto) of the deceased gets everything;
- Second, if the deceased has children and a spouse, a ‘prescribed amount’ is given to the spouse, with half of any excess going to the spouse, and the other half of any excess to be divided equally between the children;
- Third, if there are children and no surviving spouse, the children get equal shares of the estate. If any of the children has already died but left children of their own (i.e. grandchildren of the deceased) then those grandchildren inherit their parent’s share;
- Fourth, if there are only grandchildren (and no children), then each grandchild get an equal share of the whole of the estate;
- Fifth, any living ‘relatives’ (but only if there are no living spouse or children, or further issue). If necessary, a search will be made to identify any relevant persons, including parents, siblings, grandparents, and uncles and aunts (and any issue of those persons). The estate is passed down the respective ‘tiers’ of relatives in an order of priority; and
- Finally, to the Government.
The spouse is also entitled to the personal chattels of the deceased, and has an option to purchase any house that they were living in with the deceased at market value within 3 months of the date of granting of the letters of administration or being given notice of this right. If there is more than one spouse, then they must share the spouse entitlement equally.
New South Wales
The Succession Act 2006 governs who gets the deceased’s assets if the laws of New South Wales apply. These rules use a formula to distribute assets based on the dependants of the deceased at the time of death. There is a hierarchy of claimants, and it also partly depends on the amount of the estate.
The rules can be summarised as:
- All personal effects go to the surviving spouse;
- The first $350,000 (plus indexation from 2005) of assets goes to the surviving spouse;
- If the deceased’s children are from the surviving spouse, the balance of the estate goes to the surviving spouse;
- If the deceased’s children are not from the surviving spouse, then the balance is split between the spouse and the children;
- If there are children and no surviving spouse, the children get equal shares of the estate. If any of the children has already died but left children of their own (i.e. grandchildren of the deceased) then that child inherits their parent’s share;
- If there are no living children or spouse, the deceased’s parents get the whole estate in equal shares. If there are no living children, spouse or parents, the estate will go to the deceased’s siblings, then grandparents, then aunts and uncles. If necessary, a search will be made to identify any living next of kin, including parents, siblings, half-siblings, grandparents, uncles and aunts and half-blood aunts and uncles;
- Finally, to the Government.
There are special rules that apply to the family home. The deceased’s spouse may inherit the home to the exclusion of any children. As well, there are particular problems where both a spouse and a de facto survive the deceased if the de facto lived with the deceased for a two year or longer continuous period. In these more complex situations we strongly recommend that you call us on 1300 654 590 or email us for specific legal advice.
Ongoing testamentary trusts
When an executor completes the general administration of a deceased estate but there is an ongoing interest, the ‘trustee’ continues to administer the estate until it can be distributed.
This happens for instance, when beneficiaries of a Will are infants and payment is deferred until they reach 18 years, or when there is ‘life interest’ in a property or a charitable fund is set up. Trusts can be established for various reasons including providing for a disabled child, and providing funds for education or charitable purposes.
Lodge the final tax return for the deceased
The executor or administrator of the estate is required to lodge a ‘date of death’ final tax return for the deceased if:
- Tax has been withheld from the income earned by the deceased;
- The deceased earned taxable income exceeding the tax-free threshold;
- Tax has been withheld from interest or dividends because no tax file number was quoted to the investment body; and/or
- The deceased had lodged returns in prior years.
In some cases, the executor or administrator may also be responsible for lodging prior-year tax returns for the deceased, if the deceased’s tax affairs were not up to date at the time of death.
It is best to contact the deceased’s accountant or the Australian Taxation Office directly if you are unsure of what to do. The Australian Taxation Office will only be able to provide you with general advice until you are able to satisfy them that you are legally entitled to deal with them on behalf of the deceased, i.e. by presentation of the Grant of Probate or Letters of Administration.
Remove the deceased’s name from mailing lists
It is likely that the deceased’s name is on a number of mailing lists, and it can be quite distressing to continue to receive mail for the deceased in the months (and sometimes even years) after they have died.
If you want to have the deceased’s name and telephone number removed from mailing lists, you can ask the Australian Direct Marketing Association (ADMA) to do it for you.
To register the details, submit the relevant form through the ADMA website at www.adma.com.au/do-not-mail.
For grants of letters of administration in South Australia – report to the Public Trustee
In South Australia, an administrator of an intestate estate (one where there was no valid Will) is required to report to the Public Trustee on the administration (i.e. collection, realisation and distribution) of the estate within six months of the grant of letters of administration.
This is done by completing and returning a Form 66 which will be sent to you by the Public Trustee. There is also an examination fee to be paid to the Public Trustee.
You are not required to have completed the administration of the estate within six months. However, the system of having to ‘report’ to the Public Trustee helps keep the estate administration on track.
We can help. Call us on 1300 654 590 or email us to discuss how.
Contesting an estate
If you are the beneficiary of an estate under a Will and do not believe you have been given your fair share, or if you expected to benefit from an estate but have been left out, you may be entitled to contest the Will.
There is usually a narrow timeframe for challenging a Will, calculated either by reference to the grant of probate or the date of death. If the date of grant of probate is relevant, you can find this out by asking the executor of the estate, or by enquiring at the Probate Registry of the State within which the deceased had assets (usually the deceased’s home State).
Below is a table of people who may be eligible to make a claim for provision from an estate in each State and the time limit for a claim. If you believe that you may be eligible, you should seek legal advice about your individual situation as early as possible.
We can help. Call us on 1300 654 590 or email us to discuss how.
| State | The law | People entitled to claim (relationship to the deceased at time of death) | General time limit for claim | Assets that can be subject to a provision order |
| SA | Inheritance (Family Provision) Act 1972 (SA) |
|
Within 6 months of the date probate or letters of administration is granted. Extension of time may be granted upon such conditions as the Court sees fit. | Personal estate only |
| NSW | Succession Act 2006 (NSW) |
|
Within 12 months of the date of death of the deceased. Extension available if the applicant can show sufficient cause. | Personal and notional estate (including superannuation). |
| VIC | Administration and Probate Act 1958 (VIC) |
|
Within 6 months of the date probate or letters of administration is granted. Extension for a further period by the Court after hearing such of the parties affected as the Court thinks necessary. | Personal estate only |
| TAS | Testator’s Family Maintenance Act 1912 (TAS) |
|
Within 3 months of the date probate or letters of administration is granted. Extension may be granted if the court sees fit. | Personal estate only |
| WA | Family Provision Act 1972 (WA) |
|
Within 6 months from the date that a person becomes entitled to administer the deceased estate. Extension may be granted if the court is satisfied that the justice of the case requires it. | Personal estate only |
| QLD | Succession Act 1981 (QLD) |
|
Within 9 months of the date of death of the deceased. The court may at its discretion hear and determine an application if a grant has not been made. | Personal estate only |
There is no set amount that you may be entitled to if you challenge a Will or a distribution of assets by an administrator. The Court must take into consideration a number of factors to determine what each person is entitled to from the estate.
In South Australia the Court must consider whether the applicant has been left without adequate provision for their ‘proper maintenance, education or advancement in life’. In making the order the Court may, if it thinks fit, order that the provision to consist of a lump sum or periodic or other payments, (or both).
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The information contained in this post is current at the date of editing – 20 March 2024.
