What to do when a loved one pass­es away

When some­body close to you dies, it can be a very chal­leng­ing time. While deal­ing with the grief itself can seem over­whelm­ing, there is also a list of admin­is­tra­tive tasks to be tak­en care of – with some things need­ing to be done at very short notice after a per­son pass­es away.

This arti­cle looks at the most impor­tant things to be done short­ly after some­one pass­es away. 

This arti­cle is intend­ed for res­i­dents in New South Wales. If you live in anoth­er Aus­tralian State or Ter­ri­to­ry, it is best to check these steps with local authorities.

Is the deceased is an organ donor or a tis­sue donor?

If your loved one was an organ donor or a tis­sue donor, they may have dis­cussed that deci­sion with you in the past. The deci­sion will nor­mal­ly be record­ed on the Aus­tralian Organ Donor Register.

Organ dona­tion in Aus­tralia will only take place if a reg­is­tered donor pass­es away in a hos­pi­tal. Hos­pi­tals have access to the Aus­tralian Organ Donor Reg­is­ter and will dis­cuss rel­e­vant con­sid­er­a­tions for organ dona­tion with the per­son­’s family.

A loved one may have also record­ed their wish­es about organ dona­tion in an advanced care direc­tive, appoint­ment of endur­ing guardian or their will. 

Find­ing the will 

One of the most impor­tant things to do after some­one has passed away is to find and read their will. A will appoints the execu­tor of the estate and sets out the ben­e­fi­cia­ries of the estate. A will may also set out a per­son­’s funer­al wishes.

Some com­mon places where you might find the will include:

• at home par­tic­u­lar­ly in their per­son­al papers, files or a safe;
• at a bank in a safe­ty deposit box or safe cus­tody facil­i­ty; or
• at their lawyer’s office. 

Iden­ti­fy­ing the executor

One of the most impor­tant details in the deceased’s will is who the deceased appoint­ed as their execu­tor. The execu­tor is respon­si­ble for admin­is­ter­ing the estate. 

The execu­tor has a sig­nif­i­cant role after a per­son pass­es away. The execu­tor is respon­si­ble for:

• mak­ing funer­al arrangements; 
• noti­fy­ing gov­ern­ment depart­ments, banks, ser­vice providers and oth­er asset holders;
• ascer­tain­ing the deceased’s assets and lia­bil­i­ties; and
• apply­ing for probate.

Organ­is­ing the funer­al and obtain­ing a death certificate 

One of the more time sen­si­tive tasks after a per­son has passed away is the organ­i­sa­tion of their funer­al or memo­r­i­al ser­vice. Legal­ly, the execu­tor is respon­si­ble for this but they will often con­sult oth­er fam­i­ly mem­bers or close friends about funer­al arrangements.

Some­times, peo­ple take out funer­al insur­ance to pay for their funer­al. If you think that the deceased may had funer­al insur­ance, it is impor­tant to iden­ti­fy it so that claims for costs of the funer­al can be reim­bursed by the insur­er. Oth­er peo­ple may have pre­paid for their funer­al dur­ing their life. 

It is pos­si­ble to ask the bank where the deceased had their accounts to arrange pay­ment of funer­al expenses.

Usu­al­ly, the funer­al direc­tor will apply for the death cer­tifi­cate. If this is not the case, the deceased’s next of kin can con­tact the NSW Reg­istry of Births, Deaths and Mar­riages to apply for. Appli­ca­tions for a death cer­tifi­cate can be made online, at a Ser­vice NSW branch, or by post. A med­ical death cer­tifi­cate is insuf­fi­cient for the pur­pos­es of apply­ing for pro­bate or noti­fy­ing rel­e­vant stakeholders.

Noti­fy­ing people 

The execu­tor should noti­fy rel­e­vant organ­i­sa­tions such as banks, gov­ern­ment depart­ments (eg Cen­tre­link, Medicare, ATO), stock­bro­kers, share reg­istries and oth­er poten­tial asset hold­ers of the deceased’s death. This will help secure the assets of the estate as well as obtain infor­ma­tion about the deceased’s assets and lia­bil­i­ties required for the pro­bate application. 

Apply­ing for pro­bate and admin­is­ter­ing the estate

If you are an execu­tor, a sig­nif­i­cant legal respon­si­bil­i­ty is to apply for pro­bate. Gen­er­al­ly, pro­bate must be applied for with­in six months of the date of death of the deceased. If it takes longer than six months to apply for pro­bate, the delay must be explained to the Court.

There are lim­it­ed cir­cum­stances where pro­bate is not required (eg where the deceased owned every asset as joint ten­ants or bank account bal­ances are below a cer­tain amount) but pro­bate will nor­mal­ly be required. Pro­bate will be required if real prop­er­ty was owned sole­ly or as ten­ants in com­mon or the deceased owned shares. 

After pro­bate is grant­ed, the execu­tor will: 

• call in the estate’s assets; 
• pay the deceased’s and the estate’s liabilities;
• finalise the deceased’s and the estate’s tax affairs; 
• liaise with ben­e­fi­cia­ries; and
• dis­trib­ute the estate.

Swaab can help

The time after some­body pass­es away can be very dif­fi­cult. Man­ag­ing grief along with all the prac­ti­cal tasks involved with a loved one’s pass­ing can be a tremen­dous strain, whether you are a rel­a­tive, an execu­tor, or a friend.

If you would like assis­tance with the duties of man­ag­ing an estate or advice about your rights, Swaab can help.