My partner has died, what now?

When a partner passes away, there are countless things to consider. Photo: File.

When a partner passes away, there are countless things to consider. It’s understandable that the legal processes that take place after a death may feel overwhelming. However, the help of a lawyer can smooth out the process for you.

Amber Lawrence from Baker Deanne & Nutt explains what you need to know from a legal perspective, when dealing with the death of a partner.

Obtaining a death certificate and placing a Notice of Death

One of the first things that needs to happen is obtaining a Death Certificate for your partner. This acts as the official record of their death, and is necessary for the rest of the legal processes. It is also necessary for other logistical tasks, such as changing bank account names, accessing their superannuation etc.

If you’re engaging a funeral home, they may help you in applying for the Death Certificate. Otherwise, the process is different depending on the state/territory you’re in. It’s best to access your local government’s website to familiarise yourself with the process. It’s a good idea to get multiple copies of the Death Certificate certified, as you’ll need these for closing/changing bank accounts and other administrative actions.

The next thing that you’ll need to arrange is for a Notice of Death to be published. Usually this is placed in the local newspaper, and its purpose is to notify anyone who may have a claim on your partner’s estate to come forward. It also means that if there are multiple Wills, that you may not be aware of, these can be made known and be considered in the execution of their estate.

What happens when your partner had a valid Will

If your partner has a valid Will, the process is relatively straightforward.

1. You will need to contact your partner’s lawyer, and notify them of the death. Usually the lawyer’s details will be on the Will itself. They will then put the process in motion to apply for probate, which is required before the estate can be dealt with. A Grant of Probate proves that the Will is valid and meets the requirements of the Wills Act 1968 (ACT).
2. Your lawyer will then give you the option of either managing the process entirely, including contacting the various accounts and managing the administration, or you can do that yourself and save the legal costs.
3. At this stage, if someone feels they have a claim that is not included in the Will, they can also contest the Will. This can then lead to litigation. It’s important to note that associated legal costs are taken from the estate.
4. If no one is contesting the Will, then the entire process from applying for probate through to dispersing the estate can take as little as six weeks.
5. If the assets of the estate require it, an application for Grant of Probate or Letters of Administration will need to be made.
6. Once the Grant of Probate or Letters of Administration has been approved by the court, the person responsible for administering the estate will need to collect the estate assets. This will require the executor/administrator to liaise with bank(s), share holding entities and Land Titles etc. It will also usually require the executor/administrator to open a trust account with a bank for estate funds to be held for payment. The executor may also need to attend to taxation liabilities on behalf of the deceased and the estate.

What happens if your partner does not have a valid Will

Your partner may not have a valid Will at the time of their death. This could mean either they have no Will, or the Will they have was not correctly witnessed and is therefore considered invalid, or perhaps another document is available outlining their final wishes, such as a note or letter, that does not constitute a Will but may need to be considered.

In this case, the following occurs:

1. Your partner will be considered to have died intestate.
2. You can contact a lawyer, who will then apply for a Letter of Administration from the Courts, which would allow them to act on the Estate without a Will.
3. They would then gather evidence and affidavits to support the dispersal of the estate, which is guided by legislation when a Will is not available.
4. There may be people who contest the estate, in which case it may go to litigation.

Things to be aware of

One of the most common causes of delay in finalising a deceased estate is when changes have been made to a Will without beneficiaries being notified.

“We always recommend to clients when they are making changes to their Will to speak to their loved ones, to avoid it being contested after their death. This can save a lot of time, money and also distress,” Ms Lawrence says.

When applying for probate, you will need to have the original copy of the Will.

“We keep original copies of Wills securely in our records, to avoid issues with documents being lost or going missing,” Ms Lawrence says.

The most recent valid Will will cancel out any prior ones.

“One of the reasons why a Notice of Death is required is to also allow lawyers to check if they have a more recent Will for the deceased, which their family may not be aware of. We also encourage our clients to update their Wills with every major life event.”