Executor of Deceased Estate NSW - Lawyer/solicitor Needed or Not? Any Recommendations or Considerations

Myself and my sibling are named as both beneficiaries and executors of a deceased estate. There is no conflict in the family and neither of us are greedy or desperate for cash. The estate itself is semi complex, with property, shares, aged care deposit, superannuation, premium bonds and more. The property still has a lot of the person's property in it and isn't accessible to myself or my sibling due to state and international border restrictions.

Is it best to just work through this ourselves or engage a solicitor?

What are reasonable fees if engaging a lawyer? I'm guessing it's based on the size of the estate. Any pointers on not getting burnt? I'm wary of the risk of a lawyer trying to make things more complicated than need or trying to stir up conflict to get more work.

If anyone knows of a decent Gold Coast lawyer with experience in NSW law that would be really helpful too, if it expediates being able to get things signed in person without border crossings.

Thanks in advance for any advice.

I've added a poll for good measure.

Poll Options

  • 15
    DIY
  • 50
    Engage a lawyer
  • 3
    Other (specify in comments)

Comments

  • +1

    I've added a poll for good measure.

    Never a good idea for "official" matters

    • +4

      It's okay - I won't be basing my decisions purely on OzB advice or polls :) There are some clever people on here though, so it's always good to hear from others experiences.

  • +4

    I am under the impression that in NSW most estates are subject to probate laws. Only simple estates are exempt. One normally has a solicitor do the job for you. This person goes through all the estate matters, and sorts out what bills need to be paid, what obligations the estate has to the ATO and other sundry matters. He then submits and application for probate to be granted. This is then assessed by the appropriate NSW authority (court?) and once probate is granted, the executors can then carry out the wishes of the deceased and divide up the estate as directed. No allocations can be made until probate is granted.
    Others may also comment.

    • Thanks for this. Looks like we have a long process ahead of us.

  • +2

    You need to understand what it is you expect the lawyer to do. They can assist you with process, with engagement with institutions, etc., but of course all of this activity comes at an hourly cost. You mention border restrictions and the state of the property in question … not much they can do there as an example.

    In the first instance, it is easy enough to talk to all the relevant people (i.e. those holding the shares, aged care deposit, superannuation, premium bonds, etc.) about what the process is. Those people deal with this scenario every day. See what they all say and go from there.

    It is probably worth your while engaging a solicitor to deal with matters of probate, that effectively validates to "the world's satisfaction" that the person has died, they have a will in place and that you are entitled to deal with their estate as executor.

    • Thanks - that's a good idea talking to everyone first. I thought there might be some simple things that I can sort out before we have probate and a lawyer so that we're not paying a lawyer to do really basic things.

      • +2

        There's certainly plenty you can do without a lawyer, but you'll struggle to get much done without probate.

        Where you can DIY is some ground work now and then dealing with each institution after probate.

        I wouldn't DIY the probate part.

  • +4

    Having been through this before I would engage a Solicitor and an Accountant, after interviewing with at least 3 different ones with a focus on their experience with deceased estates. They should be able to clearly state the fees they will charge and estimate based on all the items you mentioned.

    I received poor 'tax advice' which meant we didn't efficiently navigate all the tax and distribution considerations, and the estate received a quite large request from the tax office several years later as the accountant 'forgot' to close out the TFN for the estate. Fortunately I had found a good accountant by then who was able to resolve it all within a week.

    My only other tips are once you have engaged them, document each task that needs to be done and in which order. Yes, you will need to project manage these 'professionals' or they will drag out the process for months/years. Also, all tasks need to be communicated in writing/email.. I found this was necessary for the Solicitor or they wouldn't do anything even after a phone call assuring me they would.

    • Thanks great advice! I hadn't thought of an accountant but that makes sense.

  • +2

    FYI, don't be too concerned about the border restrictions. Estates usually take >6 months to wind up at least.

    Due to size, probate will likely need to be applied for and granted in relevant state. After the grant of probate, assets need to be held for minimum 6 months before split. Otherwise you and your sibling become personally liable as executors if anybody puts in claim or contests the will.

    If its your first time, its a pretty steep learning curve. Recommend to use services of estate lawyer. Generally they charge % of estate as fees.

    • Thanks - yeah, I thought the time frames will be quite long. There's not really anyone to contest the will, but I who knows I guess…

  • +4

    DIY probate is achievable, but a fair bit of work.

    • Thanks - yes it looks complicated.

      • +1

        We got DIY probate kit. I think it was around $500 or so.

        • Would you DIY again having done it before?

          • +3

            @morse: Was years ago, and split the work amongst a few. The process went smoothly. Helped no one was agruing. Not sure cost we saved, but yes I'd be prepared to do it again.

  • +2

    Engage someone in NSW. You can sign electronically. You'll just end up with a QLD lawyer fumbling through NSW processes for the first time otherwise.

    Noting the size of the estate and significant tax implications of certain transfer/sale of assets, you really should engage an accountant as well.

    Superannuation you can do yourself as is usually unlikely to form part of the estate.

    • Thanks for this, good point about the tax implications. I've had issues before with lawyers wanting physical signatures and having to wait weeks for things to even be posted. Theoretically it should all be able to be done electronically, but it seems like a lot of places haven't caught up with this idea. I was wondering with Gold Coast being right on the border if they deal with estates in Tweed Heads etc, so might have knowledge of both.

  • +4

    Having experienced this myself recently with what sound like a similar estate to yours, and what we thought would be a fairly simple process I would strongly advise getting a lawyer (and accountant)

    Our big learning was that the deceased's wishes in their will are not locked in. Ours was contested from an unexpected source who came in out of the blue towards the end with their own lawyer. Seems like the fact that the deceased wanted to leave their estate to certain people (ie their own children) can be successfully challenged on various grounds. Also, as someone else said there are tax implications in several areas

    Off topic, but my main learning was that if you are near the end and want to leave everything to certain people and maximize the benefit to them, you are best to do this by means other than a will, and also rearranging your estate whilst you are still alive so as to minimize their lax liability

    • +1

      oh wow - sorry that you went through that. Do you mind me asking what the relationship of the unexpected source was? a relative? or someone else?

      I think it's unlikely in our case - but I guess you never know. Sounds like you weren't expecting it either.

      • +1

        It was a person with whom they had an on/off relationship with for a few years in the late stages of their life, but had left under acrimonious circumstances before they died.

        There are a lot of circumstances in which the deceased's will can be overruled by the courts

        https://www.lawaccess.nsw.gov.au/Pages/representing/after_so...

        • Ah, I thought it might be something like that. There's no other relationships that were are aware of, in fact fairly certain of it. There's some more distant relatives, but fairly certain they won't be interesting in claiming anything - but I guess it helps to be prepared and expect anything.

  • +1

    I would engage a solicitor but manage the process carefully - don't just leave the solicitor to do whatever they want. From experience, when my mother engaged a solicitor for this exact thing she just let them drive the process and it cost so much money for stupid, optional and 'internal' things that at the end of the day it was anger inducing.

    • Thanks, yes this definitely concerns me. I don't want to get taken for a ride.

  • +1

    There is no conflict in the family

    "yet"

    neither of us are greedy or desperate for cash

    "yet"

    Call a lawyer. This might not get messy now, but I can bet my left gonad that something will happen in the future and both of the issues above will come back to bite you.

    • haha… I'm pretty confident we'll be good, but I'll update you in the future, hold onto that gonad for now. There might be differing opinions in the future on how quickly to sell property and for how much etc, my sibling is almost too uninterested. I think I'll get annoyed with doing the majority of the work to drive getting it sorted but I think it's very unlikely we'll be fighting over who gets which share of the estate, we're pretty committed to 50/50.

  • +2

    Get a lawyer to do it. Not worth risking stuffing it up and then having to get professionals to unwind it. Also as the trustees/executors you might be personally liable for anything that is done negligently.

    Undoubtedly you will need to get legal and accounting/tax advice (engage the deceased's accountant if possible).

    Estates are very process driven but the disputes in estates law can be terrible and very expensive. As long as there is no dispute, then it is relatively reasonable.

    Find someone you trust to deal with it in NSW a good suburban practice Don't go to a CBD firm. Estates law is State based so do not engage someone in QLD because they will likely just have to engage someone as an agent in NSW to deal with that aspect of things.

    • Thank you. All sound advice. Definitely agree use a suburban practice, so we’re looking around for recommendations.

  • I would go through the public trustee if you cannot get an upfront fee from a lawyer,

    • Thanks. I think we can look at trustee and guardianship that works on a percentage of the estate. Pretty expensive, but that might be the going rate. One uncertain thing is what the property is worth, I’m not sure when their fees kick in, ie at estimated value or at time of sale.

    • +6

      I wouldn't use the public trustee unless the deceased was near destitute. Their fees are outrageous and they are very slow.

      • Oh thanks for this, I thought it looked high. Good to know!

  • +2

    My Sister & I were executors for Dad's will in 2016/17. It was a significant amount.

    Definitely engage a lawyer but make it known what your skills are.

    I work in government and am used to filling out forms and "procedure". My Sister was semi-retired and had time on her hands. The solicitor gave me tasks to do and I would sort out paperwork and fil in forms. My Sister would make phone calls, go to banks and other institutions, Having a solicitor hold our hand gave us confidence we were doing it correctly.

    I think it cost us about $6k-$8k for probate and a few other items and I thought that was fair.

    • Thank you - great to get a bit of an idea of what to expect. I like the idea of letting them know what tasks we can complete and rough pricing even if from a few years ago.

  • +3

    If there is no conflict among beneficiaries, go and get probate and do it all yourself. It's not that complicated . Lawaccess website is your best friend. Just search probate there.

    • Thanks - yes, there's no conflict between beneficiaries which is nice. I hear about families battling re this stuff, luckily we just want to get it done and see the end of it.

  • +2

    Just recently processed my mum's estate using a DIY probate Kit and it was relatively easy. If you have half a brain and are prepared to spend a few hours reading the instructions provided and submitting the completed Probate papers personally, there is no reason why you can't do the probate yourself and save yourself BIG bucks. Plus, if you are confused with any issues, it is simply a matter of phoning or emailing the people from whom you purchased the probate kit for a solution.

    • Thanks, good to here it may be an option.

  • +1

    All fun and joyous, at the moment, how nice and sweet life is…

    Get a solicitor. Stop living in fantasy land.

  • +3

    FYI: I have now been Executor and been granted Probate for TWO estates without any previous legal experience so can assure you the whole process is extremely easy even though UNLIKE you I had to navigate around a sibling that was very disruptive and engaged a lawyer just to make my life difficult. You have an IDEAL situation since "There is no conflict in the family".

    After reading these posts I'm convinced there must be Probate Lawyers trolling this forum to spread Fear, Uncertainty & Doubt (FUD) so they can make some easy money.

    DO NOT WASTE YOUR MONEY ON A LAWYER!
    A lawyer "low balls" you on cost however you will quickly find that every email they send you will cost ~$250 plus some may even take a % of the sale price of assets. I guarantee that original $2000 price quote will quickly get to $10,000 or more.

    HERE'S ALL YOU NEED TO KNOW:

    1) As Executor/s you apply for "Grant of Probate". You just need the Will & Death certificate.
    You should be able to apply online and pay a small admin fee (~$60) after which you will receive a "Grant of Probate" certificate.
    This means you are now the "legal identity" of the deceased so can operate their accounts, sell their assets (house, car etc).
    For NSW go here for everything you need to know:
    https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_proba...

    2) There's a form & small fee payable to put the title of the house into the name of the "Estate of xxxx" after which you (Executor/s) can sell through normal means. Again I recommend you do it yourself and save another $20,000 or more on agent commission.

    3) Keep your receipts for all fees/expenses you incur in doing any of this then put them in a spreadsheet after which you can reimburse yourself from the deceased bank account or pay directly from their account once you have Grant of Probate.

    4) Re bank accounts - if you don't already have their online login details you will need to contact bank and they will send you a info pack on how you apply for access.

    IN SUMMARY:

    1) Lawyers will "low ball" you on cost but once you're hooked you can't get out and this cost will quickly escalate.
    2) The whole "Apply for probate" process has been designed for anyone to do and can be done online.
    3) Once the Executor/s have received "Grant of Probate" you assume the "legal identity" of the deceased so can easily operate their accounts & sell assets.
    4) Keep all receipts and enter into a spreadsheet so you can be open & transparent with you siblings about any cost incurred or reimbursements you paid yourself.
    5) Lawyers are rarely (if ever) needed for this process but make out its a lot more complex than what it is since its easy money for them.

    • Thank you - this is super comprehensive. I do really like the idea of DIY to avoid paying ridiculous fees and still having to do a lot of the work/project manage ourselves. I'd have to get my sibling to agree though, and they are pretty keen on a lawyer sorting it all out "they are the experts". Really appreciate all your advice.

  • +1

    When my Dad died we got a solicitor. There are some hoops to jump thru and it wasn't too expensive to have a solicitor do the job. His estate was far more simple than the estate u r dealing with. Good luck.

    • Thanks!

  • "Hoops to jump thru" …yeah that's really informative and useful information for OP.
    Sounds like you're another sucker that fell for the lawyer FUD. They love people like you… go admire his new BMW that you unnecessarily paid for.

  • "Hoops to jump thru" …posting it again so it's easy to copy n paste to give this informative advice for ANY question raised on ozbargain.

    Actually I accidentally double posted my reply and it doesn't allow me to delete this 2nd one so had to edit it instead 😉

  • +1

    I agree with FairDeal above, probate is not complicated or had to get and it's disgusting that some lawyers get away with charging a percentage of the estate rather than a fair price for the work required. But it's important to remember that Superannuation is not covered by the will and is not part of the estate. The Superannuation company will have their own process and want to distribute it to the Binding or Non-binding Beneficiaries in accordance to the forms completed by the Member. This could be the fastest and simplest part of the estate to settle.

    You are likely to still need an accountant though, if you can use the accountant they used before their death that should keep your costs lower.

    • +1

      That's helpful advice. Theirs was self managed super, so a bit unsure of how it was set up, I think there is a document outlines this somewhere - once I get through the mountains of papers there are to work through. They did well for themselves financially, but organization wasn't a strong point :)

  • Why would you need an accountant?
    Genuine question since I can't see any complications in OPs post that suggest he requires one.

    Just hold back ~$2000 from distribution to beneficiaries for say 3 months in case any unexpected bills come in e.g. water, power etc.

    • +1

      My thoughts would be properly dealing with the capital gains events from selling property and shares, while closing off their tax file number. I also wouldn't know the tax implications of premium bonds or aged care deposit.

      The ATO website is really good these days so they might make it all clear, but I haven't looked.

  • +2

    Capital gains doesn't apply (if it's their home/principal place of residence) & provided you don't rent out the property there will be not be any tax implications.

    If not sold after 1yr you will incur land tax which goes into state gov's "consolidated revenue" account… daylight robbery as it's just a way to tax your property after you die!

    As you say all tax related info is now readily available on ATO site so unless there is something particularly complex again DIY.

    Simple calc re DIY vs engage a service

    How much per hour is the service charging?
    If MORE than you make per hour then DIY, if LESS the use service e.g.
    You make $50ph & accountant charges $150ph. Would you like to also make $150ph then DIY.

    Actually you're saving more bcos to save $150 AFTER tax dollars you would've had to earn $215 PRE tax dollars (assuming a 30% tax bracket).

  • Sent you a message for a recommendation of a lawyer with offices on both sides of the border.

  • Personally I would say liquidate as much as you can, pay outstanding debts and divide. if someone wants something in particular just valuate it and count that towards their portion. If two people want something if it can be co owned, do that. if not, bid for it or compromise.

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