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Estate Administration

TAS

This publication assists practitioners in Tasmania 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 (TAS)
  • 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 types of grant that may be sought include:

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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 confirming instructions
    • Item icon Initial letter to executor with duties when small estate and we are not acting
    • Item icon Costs agreement - Estate administration - TAS
    • 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
    • Item icon Enclosure - Information sheet
    • Item icon The deceased
      Cause of death It is important to consider if the cause of death gives rise to any compensation or damages, for example, death resulting from a motor vehicle or work accident. See the Motor Accidents Insurance Board and Workers Rehabilitation and Compensation Tribunal for more information.

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    • Item icon Client engagement
      Where the lawyer is to act for multiple parties – that is, a number of executors – it should be pointed out that the lawyer cannot act or continue to act where there is a material conflict of interest between them. If relations between the clients are cordial, it is helpful if they are asked at the ...

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    • Item icon Funeral expenses and other creditors
      Funeral expenses In order to pay a person’s funeral expenses most banks will allow funds to be withdrawn from the deceased’s accounts before a grant is obtained.

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    • Item icon Executors
      An executor is either an individual or a trustee organisation appointed by the will to administer a deceased’s estate. If an executor survives the testator but dies without having taken out probate of the will, or is cited to take out probate but does not appear to the citation, or renounces ...

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    • Folder icon If required - Renunciation
      • Item icon When an executor renounces
        If an executor appointed by a will does not wish to proceed in the role, they must sign a renunciation, which is then filed with a subsequent application for grant for probate or letters of administration. Where there are no remaining executors named in the will the appropriate person applies for ...

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      • Item icon Letter to executor with renunciation
      • Item icon Renunciation of probate or letters of administration with the will annexed
    • Folder icon If required - Authority 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 Beneficiaries
      • Item icon Beneficiaries
        Who is a beneficiary? A beneficiary is a person or entity to whom a bequest is made in a will. However, for the named person to be a beneficiary, both the will and the bequest must be valid. It is incumbent upon an executor to establish the validity of the will and then to administer the estate ...

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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 - TAS
    • Folder icon Births, Deaths & Marriages
      • Item icon Letter to Births, Deaths and Marriages applying for death certificate
      • Item icon How to apply for birth, death, marriage and other certificates
      • Item icon All births, deaths and marriages forms
    • Item icon Challenging the validity of a will
      Challenging a will questions its validity. Contesting a will questions the fairness of its provisions.

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    • Folder icon If required - Caveats
      • Item icon Caveats on grants
        A caveat should not be filed without proper consideration and due cause, such as where there are grave doubts as to the validity of a will. However, there may be instances where there are valid grounds for an objection to a grant being made in respect to a will or an intestacy. Rules 78 to 83 of ...

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      • Item icon Letter to caveator's solicitor for caveat details
      • Item icon Letter to client re the caveat
      • Item icon Affidavit of Caveat Search
      • Item icon Caveat
      • Item icon Withdrawal of Caveat
      • Item icon Notice of caveat to applicant
      • Item icon Notice of application to caveator
    • Item icon Estate applications generally
      Any ‘unusual’ matter – for instance, name discrepancies in the will, assets held in another name – should be addressed at the outset. Any issues of competency, including affecting medical conditions noted in the death certificate, should also be addressed at the outset. Depending upon the nature of ...

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    • 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. 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 of 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 government department 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
    • Item icon Initial letter to creditor
    • Folder icon If required - Where cause of death leads to compensation
      • Item icon Cause of death
        It is important to consider if the cause of death gives rise to any compensation or damages, for example, death resulting from a motor vehicle or work accident. See the Motor Accidents Insurance Board and Workers Rehabilitation and Compensation Tribunal for more information.

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      • Item icon Initial letter to CTP insurer
      • Item icon Initial letter to workers compensation insurer
  • Folder icon C. Probate
    • Item icon Applying for probate
      Advertising A notice of intention to apply for a grant of probate must be published on the Supreme Court’s website at least 14 days prior to lodging an application for a grant. See rr 33 and 61 of the Probate Rules 2017 and Notice of Intention to Apply for a Grant or Reseal of a ...

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    • Item icon Notice of intention to apply for grant of probate
    • Item icon Application for Grant or Reseal of Grant
    • Item icon Affidavit in Support of an Application for Probate
    • Item icon Inventory of Assets and Liabilities
    • Item icon Letter to court enclosing application for probate
    • Item icon Letter to executor on grant of probate
    • Folder icon If required - Library of less common affidavits
      • 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
  • Folder icon D. If required - Reseal
    • Item icon Reseal
      A reseal means to seal documents that evidence the grant of probate made in another jurisdiction with the seal of the court of that jurisdiction. A reseal is necessary as the personal representative appointed by a grant in a foreign jurisdiction cannot deal with assets in Tasmania, although ...

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    • Item icon Notice of intention to apply for grant of probate
    • Item icon Application for Grant or Reseal of Grant
    • Item icon Affidavit in Support of an Application for Probate
    • Item icon Inventory of Assets and Liabilities
  • Folder icon E. If required - Application for executor commission
    • Item icon Executor commission
      An executor or trustee may apply to the court for a commission or percentage of the assets of the deceased person, ‘for their pains and trouble therein as shall be just and reasonable’, not exceeding 5% of the estate’s assets, although in practice a full 5% will rarely be awarded. If any executor ...

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    • Item icon Agreement to pay commission
      In practice the award of commission is usually agreed between the personal representative and the interested beneficiaries. The amount of commission is usually no more than 1 to 2% of the estate. It is discretionary and an executor seeking commission should be aware that the court may not award any ...

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    • Item icon Application for commission
      The steps for making an application for commission are outlined above. The entire procedure can take a considerable period of time depending on court requirements. The costs associated with any application should always be considered before filing. To avoid the costs associated with a formal ...

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    • Item icon Letter to executor entitled to claim commission
    • Item icon Letter to beneficiary re claim for commission
  • Folder icon F. Dealing with assets/administration
    • Item icon Dealing with assets
      Depending upon the nature of the estate and the sophistication of the legal personal representatives, some executors may wish to deal with administration themselves. They can attend to certain tasks such as setting up an interest bearing estate account to consolidate funds before distribution. This ...

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    • Folder icon Library - Letters and forms - Finalising estate accounts and property
      • Item icon Letter to nursing home for payment
      • 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 estate
        • Item icon Duty on transfers
          A duty concession is available where property is received by the beneficiary of a will or inheritance. To claim the duty concession the following must be supplied:

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        • Item icon Transfers of real property
          Application to be Registered Proprietor by Survivorship Complete and lodge an Application to be Registered Proprietor by Survivorship to change the names of the registered proprietor on a property title, where the property is registered as joint tenants. The registration of this form is dependent ...

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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 Letter to bank building society for production to register a transfer of land
        • Item icon Letter to bank building society for production to register application by surviving proprietor
        • Item icon Online dealing forms - Land Information System Tasmania (The LIST)
        • Item icon Tasmanian Online Land Dealings (TOLD) – Forms
      • Folder icon Insurance and superannuation
        • 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 government department for transfer of motor vehicle registration
    • Folder icon If required - Deeds of family arrangement
      • Item icon Deeds of family arrangement
        Prior to preparing a deed of family arrangement, some research must be carried out to ensure a client is advised of all the potential consequences, including the implications and requirements of any applicable taxation or duty issues, and the effect of any duty exemptions which might otherwise ...

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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 G. Distribution
    • Item icon Payment of debts
      As a general rule all the property of the deceased is available to pay the debts of the estate including funeral costs, other testamentary expenses, and any other debts which have been incurred. The executor must not unnecessarily diminish the estate by paying claims they are not bound to pay and ...

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    • Item icon Estate fees
      Solicitor fees will vary according to the firm, the size of the estate, and the service being sought. There is no scale of legal fees for estate administration. Question the client at the outset so that fees can be accurately estimated, as a number of matters may not necessarily come to mind ...

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    • Item icon Accounts
      Executors and administrators alike should be aware of r 607 of the Supreme Court Rules 2000 and the necessity to maintain complete and accurate administration records. In order to maintain complete and accurate accounts the executor should:

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    • Item icon Distribution
      Payment of debts As a general rule all the property of the deceased is available to pay the debts of the estate including funeral costs, other testamentary expenses, and any other debts which have been incurred.

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    • Folder icon If required - Interim distribution
      • Item icon Interim distribution
        Depending on the circumstances of the estate it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement. Keeping s 55 of the Administration and Probate Act 1935 in mind the executor should only do so if they are certain that the estate retains ...

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      • Item icon Letter to beneficiary on interim distribution enclosing statement for approval
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Notice to creditors of intended 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
  • Folder icon H. 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 - TAS
    • 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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