If you are an executor or next of kin, you have a responsibility to gather information about the assets and debts of the deceased.
The process you will need to follow depends on whether or not the deceased had a will.
Assets and debts
'Assets' include all property that a person owns such as a home, money, car, shares, bank accounts, clothing, household furniture and pets. Debts are what a person owes, such as a home loan, personal loan or credit card.
After someone dies, the executor or next of kin will need to make enquiries to find out details of the assets and debts of the deceased.
Once you have gathered all the information, you must work out the value of the assets owned by the deceased.
If you have difficulty finding out details of the deceased's assets and debts, you could contact the deceased person's accountant if they had one.
If you can't locate information about the deceased's assets and debts, you should get legal advice.
It is important to find out the assets and debts of the deceased in order to work out whether it is necessary to apply to the Supreme Court of NSW for a grant of probate or letters of administration.
Calculating the assets and debts of the deceased
There are a number of ways you can find out about assets and debts of the deceased. You may need to search for various documents to calculate the value of assets and debts. You may also need to ask other family members to help you sort through the paperwork to find information about the assets and debts of the deceased.
Look for bank statements, passbooks, debit cards and credit card statements. Write to financial institutions to find out the balance of the deceased's accounts.
If the deceased owned a house, land or unit, you should obtain a Title search from NSW Land Registry Services (NSW LRS) or ask a private lawyer to obtain one for you for a fee.
You will need the lot and plan number for the property which you can get from the council rates notice or the local council, if you know the address of the property. NSW Land Registry Services charges a fee to conduct a Title search. You will need to obtain a Title search for each property owned by the deceased.
A Title search will show you whether the deceased owned the property in their own name or with another person as 'joint tenants' or 'tenants in common'.
The Title search will also give you information about whether the property is mortgaged with a bank or financial institution.
If the deceased owned property in their own name, or as tenants in common with another person, you must apply for Probate (if there was a will) or Letters of Administration (if there was no will).
If the deceased owned property as joint tenants, the surviving joint tenant will be entitled to the property.
You will need to go to a private lawyer to transfer the ownership of the property.
Checklist: Preparing to see a lawyer
If the deceased owned a car, motorcycle, caravan or trailer, you must find out the registration details and insurance policies.
You should also find out the value of the vehicle from a licensed motor dealer or valuer.
Transport for NSW generally does not require a grant of Probate or Letters of Administration to transfer the ownership of the vehicle.
If the deceased owned shares or dividends, you will need to contact the share registry of the company or Computershare Australia Investor Services to find out the value of the shares.
If the deceased owned a pet they may have included some information in their will about who will take care of the animal. If the deceased did not have a will or did not provide for their pet in their will, it is up to the executor or next of kin if they want to take care of the pet or take it to an animal shelter. Animals must not be left without proper arrangements for their immediate care and welfare.
You should contact your Local Council to check requirements to transfer ownership of registered animals, such as dogs and cats.
Some animals can’t be kept as a pet without a licence. If the deceased person's pet is a native Australian animal, including native birds, mammals, reptiles and amphibians, see Parks & Wildlife on the Service NSW website.
There are two types of debts, secured and unsecured.
A secured debt is attached to a certain asset, for example a home loan is secured against a property. If the deceased person has a home loan, you must contact the creditor about your options.
If a beneficiary has been given an asset with a secured debt, and the beneficiary wants to keep the asset, the beneficiary must also deal with the debt which is secured against the asset. The debt must either be repaid or refinanced before the asset is transferred to the beneficiary.
An unsecured debt is not attached to an asset, for example a credit card or personal loan.
Unsecured debts are usually paid from money in the estate. However, if there is not enough money or property to pay the debt, you can write to the creditor asking them to “write off” the debt. If the debt is more than $5,000 it is possible for the executor, next of kin or creditor to bankrupt the estate.
If you are the beneficiary of superannuation death benefit or life insurance, you are not required to pay debts owed by the estate from these payments.
Bank accounts
It’s important to notify the person’s financial institution about the death of the account holder and to close the account. There may be more than one account held by the person.
You can notify the bank that the account holder has died by sending them a letter.
Sample: Letter to the bank
After you notify the bank about the death of the account holder, the bank will provide a list of accounts held in the name of the deceased, along with the balances of these accounts, at the date of the death. The bank will also freeze any further access to these accounts and calculate any interest to the date of death.
You should check the statements to see whether there were any regular payments to or from a service provider or person and notify them of the death of the account holder.
Each bank or financial institution will have its own requirements for closing the accounts of a deceased person. If the amount of money in the account is large, the bank may require Probate or Letters of Administration before it will pay out the money in the account. You should check with each bank or financial institution what their requirements are.
Before closing the deceased's accounts the bank may ask you to:
- provide a certified copy of the death certificate
- provide a copy of the will (if probate is not being applied for) or a copy of the Letters of Administration or Probate
- provide other documents to verify your identity and relationship to the deceased
- complete a form, sometimes called a 'small estate indemnity' if the amount of money in the account is small.
When money is paid out of the deceased's bank account, a cheque is usually made by the bank to the 'Estate of the late' deceased person. This cheque will need to be deposited into an estate bank account or a solicitor's trust account.
If the deceased held joint bank accounts with another person then the other person is entitled to the money held in the account as the surviving account holder. To close the joint account, the surviving account holder will usually need to provide a certified copy of the death certificate to the bank, close the joint account and transfer the money to an account in their name only.
Home loan accounts may be in:
- the deceased's sole name, or
- joint names.
If the home loan account is in the name of the deceased only, the executor or next of kin must tell the bank or financial institution without delay. The bank may agree to defer home loan repayments for a period of time or may discuss other options with you. Probate or Letters of Administration will have to be obtained so that the executor or next of kin can legally deal with the property.
Home loans or mortgages are secured loans. The property with the loan can’t be transferred to another person without first dealing with the loan. This means that the mortgage must either be paid out or refinanced before the property can be transferred.
If the deceased said in their will that the property was to be transferred to a beneficiary, the beneficiary must refinance the existing mortgage into their own name when the property is transferred to them.
If a beneficiary can’t afford to refinance the mortgage, the property may have to be sold, the mortgage repaid and the remainder of the proceeds of sale, after deduction of costs of the sale and any other estate expenses, will be paid to the beneficiary.
If the deceased held a joint home loan or mortgage account with another person ('surviving account holder'), the bank will not immediately remove the deceased's name from the home loan account. The surviving account holder is still responsible to continue making repayments for the loan otherwise the bank can take legal action for possession of the home.
To have the deceased's name removed from the home loan account, the surviving account holder may need to refinance the mortgage into their own name. The surviving account holder should discuss this with their bank or financial institution.
If the deceased owned property as 'tenant in common', the deceased person's share of the property will be part of their estate. An executor will deal with the deceased's share in the property as set out in the will or with the rules of intestacy. If the surviving owner is entitled to the whole of the deceased's share of the property, the surviving owner can refinance the mortgage and have the deceased's share transferred to their own name.
If the property is owned by the deceased and another person as 'Joint tenants' then a Notice of Death and certified copy of the Death Certificate can be registered with NSW Land Registry Services to remove the deceased's name from the title and transfer the property into the surviving joint tenant's name. This can be done when the refinance of the mortgage occurs.
If you can’t afford to continue paying the home loan repayments, speak with your financial institution and get legal advice. You may have options to refinance if you want to keep the property or to request a reduction or deferral of repayments while you make arrangements to sell the property.
If you own a property with a deceased person and if you want to transfer it in your own name, you should get legal advice from a private lawyer.
Superannuation
If the person was employed before they died, they may have money in their superannuation fund.
As an executor or next of kin, you have authority to contact the deceased's superannuation fund to notify them of the member's death and to make a death benefit claim.
Superannuation is dealt with separately from the deceased person's estate.
The superannuation fund will make a decision about who is entitled to receive superannuation benefits.
Superannuation is a payment that is made by an employer on behalf of an employee to the employee's superannuation fund. Employers are required by law to make superannuation contributions in addition to the employee's wage.
As an executor or next of kin, you must find out whether the deceased was a member of a superannuation fund and the details of that fund. To find this information, you may need to make enquiries with:
- the deceased's last employer
- the deceased's accountant, or
- directly with various superannuation funds.
If you don’t know which superannuation fund, you can contact the Australian Taxation Office. See Checklist: What to do when someone dies on the Australian Taxation Office website.
The superannuation fund will not automatically allow a person to access the superannuation account after a person dies. The 'death benefit' or a deceased person's superannuation benefit will be paid to a nominated beneficiary, if the deceased made a binding nomination. If there is no binding nomination, then the superannuation fund will decide whether to pay the death benefit to the dependent, interdependent or to the estate.
The most common dispute about superannuation involves claiming the 'death benefit'.
The superannuation fund will require certain information from you to prove your relationship with the member. For example, you may be required to provide:
- a certified copy of the death certificate for the deceased
- a certified copy of your birth certificate if you are the son or daughter of the deceased
- a certified copy of the marriage certificate or evidence of proof that you were in a de facto relationship with the deceased
- a certified copy of the will if you are the executor.
Once you have provided the necessary details to confirm your relationship to the deceased, the superannuation fund will ask you to complete and return various forms to claim the death benefit.
Each superannuation fund has a different procedure so it is best to ask them to send any forms to you by post or email. Remember, it may take several weeks after you return all the forms and any other requirements for the claim to be processed.
If the beneficiary is under 18 years old, the superannuation fund may decide to pay the death benefit to the parent or guardian who is caring for the child or NSW Trustee & Guardian to be held in trust until the child reaches the age of 18.
The superannuation death benefit does not automatically become part of a deceased person's estate which is distributed to beneficiaries according to a deceased person's will or the rules of intestacy.
The superannuation fund is required by law to pay the death benefit to the dependants, interdependent or the estate if there is no binding nomination and to the nominated beneficiaries, if there is a binding nomination.
For example, if the deceased person made a binding nomination of one child as beneficiary of the death benefit and also expressed in their will that the entire estate should go to another child, the superannuation fund will pay the death benefit according to the binding nomination, not the will.
If the superannuation fund paid the death benefit to the wrong person or if you believe you are entitled to the death benefit then you must seek an internal review with the superannuation fund within 28 days of being notified.
You should explain the reasons why you believe the decision made by the superannuation fund was wrong and also provide supporting documents to prove your relationship with and/or dependency on the deceased.
If you are still not happy with the decision of the superannuation fund, then you may apply to the Australian Financial Complaints Authority (AFCA) within 28 days.
The Australian Financial Complaints Authority (AFCA) can handle complaints about regulated funds. AFCA can’t deal with complaints about self-managed funds.
Before you lodge a complaint with the AFCA, you should check the type of fund the deceased was a member of. If you are not sure, you should contact the fund and ask them.
It is important that you try to resolve your dispute directly with the fund before lodging your complaint with AFCA.
After you lodge your complaint and supporting documents with AFCA, AFCA will let the fund know and ask them to respond to the complaint. AFCA will try to mediate first.
AFCA will make a decision and let you know in writing.
To make a complaint, see Superannuation complaints on the AFCA website.
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