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Estate Administration

ACT

This publication assists practitioners in the Australian Capital Territory who are acting for executors and administrators in estate matters.

2 Matter Plans

Overview

The publication comprises 2 guides to assist practitioners in obtaining a grant of probate or letters of administration. The commentaries cover obtaining the grant, collecting the assets, and distributing the estate in accordance with the will or the rules of intestacy.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Letters to the executor or administrator and beneficiaries at various stages;
  • Libraries of letters to asset holders – initial and final;
  • Letters and forms for executor or administrator commission;
  • Deeds of release and indemnity;
  • Deeds of family arrangement;
  • Statement of assets, liabilities, and distribution;
  • Letter to beneficiaries with distribution;
  • Final letters to executor or administrator – concise and extensive.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Probate (ACT)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Wills and estates
      • Item icon Estate planning - An exciting opportunity for small law firms
      • Item icon Executor's commission 1 - Executor's commission and the professional executor
      • Item icon Executor's commission 2 - Horns of a dilemma
      • Item icon Executor's commission 3 - A fiduciary duty
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon To accept or not accept instructions in urgent will matters
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    The Administration and Probate Act 1929 provides the statutory framework for grants of probate and letters of administration in the Australian Capital Territory. Under s 39 of the Act, grants of representation vest title to a deceased’s property in the executor of their will or administrator ...

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  • Item icon Summary of the process
    The usual steps in applying for a grant of probate are:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Probate
    • Item icon To do list - Probate
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Estate administration
    • Item icon Conflict of interest check
    • Item icon Initial letter to spouse executor
    • Item icon Initial letter to executor
    • Item icon Initial letter to executor with duties when small estate and we are not acting
    • Item icon Enclosure - Information sheet
    • Item icon Costs agreement - Estate administration - ACT
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Preliminary matters
    • Item icon Preliminary matters
      General considerations in a probate matter include:

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    • Item icon Estate taxes and duty
      Executors should be advised to seek appropriate information and specialist guidance from an accountant or tax adviser before assets are redeemed or transferred. When appropriate, beneficiaries may be advised to obtain independent legal, tax, and financial advice on consequences arising from their ...

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    • Folder icon If required - Authority to obtain documents from previous solicitor
      • Item icon Letter to another solicitor with authority to obtain documents
      • Item icon Authority of executor to obtain will from another solicitor
      • Item icon General authority to hand over documents
    • Folder icon Application for a death certificate
      • Item icon Access Canberra - Births, relationships and deaths
    • Item icon Executors
      An executor is a person, either an individual or a trustee organisation, appointed by the will to administer the deceased’s estate. An executor is responsible for:

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    • Folder icon If required - Renunciation
      • Item icon Renunciation of probate
        An executor appointed by a will who does not wish to act must resign from the role and renounce probate. Renouncing probate is done in writing by signing a Renunciation of Probate form. This form is then filed with an application for a grant. A precedent Renunciation of Probate is available on the ...

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      • Item icon Letter to executor with renunciation
      • Item icon Letter to Public Trustee and Guardian with renunciation
      • Item icon Renunciation of probate
      • Item icon Notice of renunciation of probate in favour of public trustee and guardian
    • Folder icon Beneficiaries
      • Item icon Beneficiaries
        A beneficiary is a person or entity to whom a testator makes a bequest in their will. A named person is only a beneficiary if the will and the bequest are valid.

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      • Item icon Initial letter to beneficiaries re probate application
      • Item icon Initial letter to beneficiaries re application for probate where client is alternate or remaining executor
      • Item icon Deed of disclaimer - Probate
      • Item icon Clause - Statutory declaration of beneficiary under will
      • Item icon Statutory declaration - blank - ACT
    • Item icon Challenges to a will
      A challenge to a will questions its validity, not the fairness of its provisions. While each Australian state and territory has laws concerning wills, the circumstances and processes involved in challenging a will are similar across all Australian jurisdictions.

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    • Folder icon If required - Caveats
      • Item icon Caveats on grants
        Lodging a caveat against an application for probate or administration before the grant is ordered:

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      • Item icon Letter to caveator's solicitor for details
      • Item icon Letter to client re the caveat
      • Item icon Caveat
      • Item icon Notice of withdrawal of caveat
  • Folder icon C. Gathering information
    • Folder icon Library of initial general letters
      • Item icon Initial letter to Centrelink
      • Item icon Initial letter to Medicare
      • Item icon Initial letter to Electoral Roll
      • Item icon Advice of death for Centrelink, Medicare
    • Folder icon Library - Initial letters to asset holders
      • Item icon Initial letter to bank building society
      • Item icon Initial letter to nursing home
      • Item icon Initial letter to health insurer
      • Item icon Initial letter general cancellation of membership
      • Item icon Initial letter to deceased's accountant
      • Item icon Initial letter to deceased's employer
      • Item icon Initial letter to superannuation fund
      • Item icon Initial letter to deceased's stockbroker for portfolio details
      • Item icon Initial letter to company for debenture particulars
      • Item icon Initial letter to company or registry for share particulars
      • Item icon Initial letter to Access Canberra re motor vehicle
      • Item icon Initial letter to deceased's insurer for policy details
      • Item icon Initial letter to deceased's insurer for details of bonds
      • Item icon Initial letter to mortgagee requesting mortgage details and transfer requirements
    • Folder icon If required - Where cause of death leads to compensation
      • Item icon Cause of death
        A deceased’s cause of death may give rise to compensation, damages, or support. Legal action may be required for death resulting from a motor vehicle or work accident, or a criminal act.

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      • Item icon Initial letter to CTP insurer
      • Item icon Initial letter to workers compensation insurer
  • Folder icon D. Probate
    • Item icon Applying for probate
      Applications for grants of probate are made to the Supreme Court of the Australian Capital Territory. Most applications are uncontested, at least at the outset. Uncontested applications can be lodged at the court in person or by mail.

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    • Item icon Originating application - probate
    • Item icon Grant of probate
    • Item icon Notice of intention to apply for probate
    • Item icon Affidavit of applicant for probate
    • Item icon Affidavit of search
    • Folder icon Library of less common forms and affidavits
      • Item icon Affidavit - general
      • Item icon Clause - Affidavit by firm - Condition and finding of the will
      • Item icon Clause - Affidavit by executor - Condition and finding of the will
      • Item icon Clause - Affidavit by person with knowledge - Condition and finding of the will
      • Item icon Clause - Affidavit by subscribing witness - Condition and finding of the will
      • Item icon Clause - Affidavit of delay
      • Item icon Clause - Affidavit of due execution by translator
    • Item icon Letter to executor after grant
  • Folder icon E. Reseal
    • Item icon Reseal
      A grant of probate has no effect in other jurisdictions. For example, a grant of probate made in New South Wales cannot be used to deal with assets held in the Australian Capital Territory. To be effective, the original grant needs to be resealed by a court in that second jurisdiction. Resealing ...

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    • Item icon Originating application - reseal of foreign grant
    • Item icon Reseal of foreign grant
    • Item icon Notice of intention to apply for reseal of foreign grant
    • Item icon Affidavit of applicant for reseal of foreign grant
    • Item icon Affidavit of search - reseal of foreign grant
  • Folder icon F. If required - Application for executor commission
    • Item icon Executor commission
      The court may allow payment of a commission or percentage that it considers just to an executor out of a deceasedʼs assets for the executorʼs services: s 70 of the Administration and Probate Act 1929. The payment of commission arises through:

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    • Item icon Agreement to pay commission
      Executor commission usually is agreed between the executor and the interested beneficiaries. Interested beneficiaries are those entitled to receive the residue of the estate out of which testamentary expenses, including executor commission, usually are paid.

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    • Item icon Application for commission
      An application for commission is incidental to verifying and passing the estateʼs accounts with the court. The process occurs in two stages:

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    • Item icon Forms - ACT Court Procedures Act 2004
    • Item icon Letter to executor entitled to claim commission
    • Item icon Letter to beneficiary re claim for commission
    • Item icon Application in proceeding
    • Item icon Clause - Application for order passing accounts and for commission
    • Item icon Registrars certificate of examination of accounts
    • Item icon Affidavit - general
    • Item icon Clause - Affidavit of service of notice under rule 2749
  • Folder icon G. Dealing with assets/administration
    • Item icon Dealing with assets
      Depending on the nature of an estate, some executors may wish to administer the estate themselves. Executors who administer an estate, including a trustee company, usually set up an interest-bearing estate account to consolidate the estateʼs funds before distribution.

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    • Item icon Estate taxes and duty
      Executors should be advised to seek appropriate information and specialist guidance from an accountant or tax adviser before assets are redeemed or transferred. When appropriate, beneficiaries may be advised to obtain independent legal, tax, and financial advice on consequences arising from their ...

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    • Item icon Notice of intended distribution
    • Folder icon Verification of identity
      • Item icon Verification of identity
        Verification of identity requirements must be met for estate assets that are real estate. Access Canberra requires proof of identity through a Buyer Verification Declaration before a transfer is lodged.

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      • Item icon Access Canberra - Land title online buyer and seller verification declaration
    • Folder icon Library - Letters and forms - Finalising estate accounts and property
      • Item icon General collection letter
      • Item icon General reminder letter
      • Folder icon Bank
        • Item icon Letter to bank building society for account proceeds
        • Item icon Certificate of identity for bank withdrawal forms
      • Folder icon Real property
        • Item icon Transfers of real property
          Jointly owned property automatically passes to the surviving proprietor and is not dealt with under a will. An executor lodges a Notice of Death by Surviving Proprietor form to transfer a joint tenant’s interest to the survivor. For property that a deceased owned as a sole proprietor or tenant in ...

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        • Item icon Foreign resident capital gains withholding payments
          The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016. Essentially, when real property is transferred, the transferee is required to withhold 15% of the purchase price and remit this sum to the Australian ...

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        • Item icon Conveyance duty
          Under s 232D of the Duties Act 1999, conveyance duty is not payable on a transfer of dutiable property from an executor to a beneficiary. This includes a transmission application by a devisee, beneficiary, or next of kin.

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        • Item icon Notice of death by surviving proprietor
        • Item icon Letter to bank building society for production to register a notice of death
        • Item icon Declaration by executor
        • Item icon Transmission application
        • Item icon Letter to bank building society for production to register a transmission application
        • Item icon Letter to law stationer enclosing documents for registration
        • Folder icon If required - Transfer
          • Item icon Transfer
      • Folder icon Insurance and superannuation
        • Item icon Superannuation death benefits
          Superannuation does not form part of an estate and generally cannot be dealt with in a will. A member of a superannuation fund must make a binding death benefit nomination to direct the fund’s trustee to deal with the proceeds of the member’s superannuation on their death. If a member’s nominated ...

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        • Item icon Letter to deceased's insurer for payment
        • Item icon Letter to health insurer for payment
        • Item icon Letter to superannuation fund on transmission
        • Item icon Letter to deceased's insurer cancelling home insurance
      • Folder icon Shares
        • Item icon Letter to company debenture transmission
        • Item icon Letter to company shares transmission
        • Item icon Transmission application - Company shares for deceased matters
        • Item icon Section 1071B Statement
        • Item icon Transfer of shares
      • Item icon Letter to Access Canberra for transfer of motor vehicle registration
      • Item icon Letter to nursing home for payment
    • Folder icon If required - Deeds of family arrangement
      • Item icon Deeds of family arrangement
        Deeds of family arrangement are agreements to vary the distribution of an estate set out in a will or arising on intestacy. Beneficiaries can agree to share the estate assets under this type of arrangement. Clients must be advised of all potential tax or duty implications of a deed of family ...

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      • Item icon Deed of family arrangement - Life tenant and remainderman
      • Item icon Deed of family arrangement
    • Folder icon If required - Gifts to charities
      • Item icon Letter to charitable institution beneficiary discussing residuary legacy
      • Item icon Letter to charitable institution beneficiary discussing pecuniary legacy
      • Item icon Letter to charitable institution beneficiary discussing specific legacy
    • Item icon Letter to executor advising assets sold
    • Item icon Letter to creditor paying account
  • Folder icon H. Distribution
    • Item icon Distribution
      Executors should not distribute an estate to the beneficiaries until the requirements of s 64 of the Administration and Probate Act 1929 and the estate’s debts, liabilities, and relevant expenses have been satisfied. This is to ensure they do not incur liability for early distribution. ...

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    • Item icon Timing of distribution
      Section 64(4) provides that an executor who has complied with s 64(1) is not liable for any assets distributed to a person with a claim of which the executor did not have notice at the time of distribution. To protect themselves from liability, executor's should not distribute until they ...

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    • Folder icon If required - Interim distribution
      • Item icon Interim distribution
        An interim distribution to beneficiaries of part of their entitlement may be appropriate. An executor should only make an interim distribution when the estate has sufficient funds to cover all debts and liabilities and the final distributions.

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      • Item icon Letter to beneficiary on interim distribution enclosing statement for approval
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon Distribution prior to 6 months
      • Item icon Letter to executor with final accounts and distribution - Prior to 6 months
      • Item icon Letter to beneficiary on distribution - Prior to 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon If required - Deeds of release and indemnity
      • Item icon Deed of release and indemnity - No grant
      • Item icon Deed of release and indemnity - Distribution - Without notice of claims
      • Item icon Deed of release and indemnity - Distribution - With notice of claims
      • Item icon Deed of release and indemnity - Executors commission
    • Folder icon Distribution after 6 months
      • Item icon Letter to executor with final accounts and distribution - After 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Letter to beneficiary enclosing specific bequest
    • Item icon Letter to beneficiary with distribution of residue
    • Item icon Keeping proper accounts
      Executors are obligated to keep proper estate accounts to ensure they provide the beneficiaries with clear and accurate information. What is proper depends on the nature of the estate.

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    • Item icon Passing the accounts
      Passing an estate’s accounts requires the executor’s records to be verified and passed by the court. In so doing, the court acts as an auditor of the accounts maintained by the executor. Verifying and passing the accounts involves checking:

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  • Folder icon I. Finalising the matter
    • Item icon Final letter to executor - Concise
    • Item icon Final letter to executor - Extensive
    • Item icon Example invoice incorporating notification of client's rights - ACT
    • Item icon Invoice recital - Estates
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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