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Navigating a Deceased Estate

The following article was kindly written by Karolina Rzymkowska, Legal Practice Director at Perth Legal Collective, and discusses how to navigate a deceased estate.

You may have heard the saying, “there are but two certainties in life, death and taxes” – Benjamin Franklin. 

What happens when a loved one suddenly passes away? Who needs to do what, when and how?

Administering a deceased estate is a big job. The person or persons who are generally tasked with administering the estate are those named as ‘executors’ in the Will. A person who is named as an executor in a Will does not have to take on the role if they don’t want to. They may ‘renounce’ their appointment and allow the next in line executor to act in their place.

Agreeing to act as an executor carries with it a lot of responsibility. The role can be onerous and very time consuming. In some limited circumstances executors can also be held personally liable to the beneficiaries of the estate. This is one of the main reasons why many clients choose to appoint professionals into these roles.

Once a person agrees to act as an executor, they are responsible for obtaining what is called a ‘Grant of Probate’. A Grant of Probate is the legal process of applying to the Supreme Court to have the deceased’s Will ‘proven’. In ‘proving’ the Will, the Supreme Court must determine whether the Will is valid and confirm that it is in fact the last will and testament. Sometimes, there may be questions regarding the deceased’s capacity to have made the Will, questions relating to undue influence may be raised or there may be suspicious circumstance surrounding the making of the Will which need to be investigated and addressed. An executor is required to assist the Court in this process. Occasionally, the process of proving the Will becomes contentious with different people claiming to hold the last valid will of the deceased.

In nutshell, an executor’s role involves locating the will, applying for a Grant of Probate and administering the estate in accordance with the terms of the Will.

Generally, estate administration involves several steps as outlined in the table below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Each estate is different, and the above table is a guide only. There may be factors such as:

  • Claims by disgruntled beneficiaries against the estate,
  • Issues with the validity of the Will,
  • International or Interstate assets,
  • Estranged beneficiaries, and/or
  • Issues with the interpretation of the Will, which can result in many additional steps (and costs!) to the process of estate administration.

Finally, you may have noticed in the table above that there is no formal step referred to as ‘the reading of the Will’. This is part of the American estate administration process. In our legal system, an executor is not required to hold a meeting to read the Will to beneficiaries. In fact, an executor is not even compelled to release a copy of the Will to beneficiaries until a Grant of Probate has been obtained.

If no Will for the deceased can be located, then a process known as Letters of Administration needs to be commenced. This process is similar to that of a Grant of Probate except that the division of the deceased’s assets is determined pursuant to a statutory formula found in the Administration Act 1903 (WA) and there is no ‘executor’. Instead, the person or persons who are collectively entitled to the largest share of the deceased’s estate are entitled to apply for a Grant of Letters of Administration and be appointed the ‘administrators’ of the estate. In many other respects, the administration follows the ordinary course described above.

In conclusion, if a loved one has passed away, it is best to get in touch with a professional advisor who can guide you through the above steps and direct to the appropriate professionals for help and assistance along the way. The team at Perth Legal Collective can assist in guiding you through the process at what is likely to be a difficult time. If you would like to get in touch with the team, please email admin@perthlegalcollective.com.au or call (08) 6146 1355.

 

Legal Disclaimer

This article is intended as a source of information only. No reader should act on any matter without first obtaining specialist professional legal advice which takes into account an individual’s objectives, financial situation and needs. The information in this article is current as at July 2022.

 

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Privacy Policy

Privacy Policy

1. Introduction

1.1 Count Limited and its related bodies corporate (collectively ‘Count’, ‘we’, ‘us’, ‘our’) respect your privacy and are committed to protecting your privacy. We understand the importance you attach to information that identifies you (your ‘personal information’) and we want to help you protect it.

1.2 We are bound by, and committed to supporting, applicable privacy legislation including the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). This Privacy Policy (‘Policy’) explains how we collect, hold, use, and disclose your personal information that we may obtain when you submit information to us in person, by mail or email, or by visiting our website.


2. How do we collect and hold personal information about you?

2.1 We collect personal information from you in a variety of methods. Examples of how we collect personal information include: 

  • Through communications between you and our representatives or your adviser or accountant;
  • Your use of our website;
  • Completing application forms in relation to products and services;
  • Other avenues, where required to meet regulatory requirements and comply with the law;
  • When you apply for employment with us;
  • Through marketing activities which request information from you, such as surveys.

2.2 Because our products and services are often offered by intermediaries such as financial planners, solicitors, or accountants, we may collect personal information about you from these third parties.

2.3 You can deal with us anonymously or by pseudonym unless it is impractical for us to deal with you where you have not identified yourself or have used a pseudonym. We require certain personal information to provide you with services and information. If you do not provide us with certain personal information, we may not be able to provide you with access to those services or respond to your request for information.

2.4 We will only collect personal information from you where it is reasonably necessary for us to provide our services to you or to perform our functions or activities.

2.5 We will only collect sensitive information from you with your consent, except in permitted general situations which include:

  • The collection of the information is required or authorised by or under an Australian law or a court/tribunal order;
  • The collection is necessary to address a threat to an individual’s life, health, or safety; and
  • Permitted health situations.

2.6 We may hold your information electronically or physically and have in place appropriate data and physical security measures and protocols to protect that information from loss or from disclosure not contemplated by this Policy.


3. What type of personal information do we collect?

3.1 The type of personal information we may collect from you includes (but is not limited to):

  • Names, address, email, phone numbers, and job titles;
  • Information in identification documents such as your passport or driver’s licence;
  • Tax file numbers (TFNs) and other identification numbers such as Medicare number;
  • Date of birth and gender;
  • Financial information;
  • Details of superannuation and insurance arrangements;
  • Sensitive information (with your consent), such as health information or membership details of professional or trade associations or political parties;
  • Bank account details, shareholdings, and details of investments;
  • Educational qualifications, employment history, and salary;
  • Visa or work permit status;
  • Personal information about your spouse and dependants.


4. How do we use your personal information?

4.1 We will use the information you supply for the purpose of providing you with the service(s) agreed under our engagement and related services, such as accounting or business advisory services, or to meet obligations we may have at law, including in relation to health and safety.

4.2 We may also use the information we collect for our internal business and management processes (for example, accounting or auditing purposes), monitoring and improving our website, keeping you informed about our services and company news, and for any other purposes that would be reasonably expected by you and to allow us to comply with our obligations under the law.

4.3 We may also use personal information we have collected from you for the purpose of marketing our services. If you do not want to receive marketing material from us, you can unsubscribe by contacting us as detailed below:

  • For electronic communications, you can click on the unsubscribe function in the communication;
  • For hard copy communications, you can email us using the details in the ‘How to contact us’ section of our website informing us that you wish to unsubscribe http://www.count.au/Contact-Us.


5. How do we disclose your personal information?

5.1 Your personal information will only be disclosed:

  • To our employees, contractors, consultants, dealers, agents, or advisors as required to provide our services to you or for related purposes;
  • To suppliers and service providers (for example, accounting or auditing service providers or our website hosting service providers) in connection with our provision of services to you;
  • Where you have consented to the disclosure;
  • Where required or authorised to do so under an Australian law, court or tribunal order, or other governmental or regulatory body or agency;
  • In permitted health situations;
  • If we believe that the use or disclosure of the information is reasonably necessary for enforcement-related activities conducted by, or on behalf of, an enforcement body; or
  • In connection with an actual or proposed sale, reorganisation, or transfer of all or part of our business, including as set out in clause 16.1.

5.2 We may use, store, process, or back-up your personal information on servers that are located overseas (including through third-party service providers). The privacy laws in other countries might not be the same as in Australia. However, where we provide your personal information to third parties overseas, we will take such steps as are reasonable to ensure that your information is handled and stored in accordance with Australian privacy laws and this Policy. Currently, we use outsourced service providers in the Philippines, India, and Serbia.


6. Access to your personal information

6.1 You can request us to provide you with access to personal information we hold about you by sending us an email: privacy@count.au (no spam please) or writing to us at Level 1, 45 Clarence Street, Sydney NSW 2000.

6.2 We may allow an inspection of your personal information in person, or provide copies or a summary of relevant documents, depending on what is the most appropriate in the circumstances. Any charge we make for providing access will be reasonable and will not apply to lodging a request for access. Your request to access your personal information will be dealt with in a reasonable time.

6.3 Note that we need not provide access to personal information if a request is frivolous, or where to provide access would pose a threat to health or public safety, unreasonable interference with another person’s privacy, or be a breach of the law. If we refuse access, we will provide you with reasons for doing so.


7. Accuracy and correction

7.1 To enable us to keep our records properly, please notify us if you believe that any information we hold about you is inaccurate, incomplete, or out of date and we will take reasonable steps, in the circumstances, to ensure that it is corrected. You can notify us by sending us an email: privacy@count.au (no spam please) or writing to us at Level 1, 45 Clarence Street, Sydney NSW 2000.


8. Our security procedures

8.1 We take your privacy and the privacy of our associated entities and their clients very seriously. We will take reasonable steps in the circumstances to protect any personal information you provide to us from misuse, interference, or loss and unauthorised access, modification, and disclosure.

8.2 We will also deidentify and destroy the personal information we hold about you once our legal obligations cease. Our security procedures are reviewed from time to time and we update them when relevant.

8.3 Please be aware that the transmission of data over the internet is never guaranteed to be completely secure. It is possible that third parties not under our control may be able to access or intercept transmissions or private communications without our permission or knowledge. We take all reasonable steps, in the circumstances, to protect your personal information. However, we cannot ensure or warrant the security of any information you transmit to us. Such transmissions are done at your own risk.


9. Data breach notification

9.1 We are required to give notice to the Office of the Australian Information Commissioner (OAIC) and affected individuals of an “eligible data breach”. This means that if we hold personal information about you, and there is unauthorised access to or disclosure of your personal information, and if you, as the “affected individual” would be likely to suffer serious harm from this access or disclosure, we must notify both you and the OAIC.

9.2 “Serious harm” could include identity theft, threats to physical safety, economic and financial harm, harm to reputation, embarrassment, discrimination, or harassment. The test is whether a “reasonable person” would expect you to suffer serious harm.

9.3 If you are likely to suffer serious harm from a data breach, we will notify you of:

  • The nature of the eligible data breach (i.e., how the information was accessed or disclosed);
  • The type of information that was accessed or disclosed;
  • The steps that we have taken to control or reduce the harm, and those that we plan to take;
  • Any assistance we can offer you, such as arranging for credit monitoring;
  • Anything that we can suggest you can do to assist yourself or mitigate the harm;
  • Whether the breach has also been notified to the OAIC;
  • How you can contact us for information or to complain; and
  • How to make a complaint with the OAIC.

9.4 We will notify you using the same method that we usually use to communicate with you. If it is not practicable for us to notify you personally, we will publish the notification on our website.

9.5 There are some circumstances in which we do not have to notify you of a data breach. These include:

  • Where we have taken remedial action before any serious harm has been caused by the breach;
  • If you have been notified of the breach by another entity;
  • If notification would be inconsistent with Commonwealth secrecy laws; or
  • Where the OAIC declares that notification does not have to be given.

9.6 Depending on the nature of the breach and the harm, we may voluntarily inform other third parties such as the police or other regulators or professional bodies.


10. Identifiers

10.1 We will not adopt as our own any government identifiers you may provide to us such as TFNs and will not store these identifiers on any information.


11. Links to other sites

11.1 We may provide links to other sites for you to access. You should be aware that these other sites are not subject to this Policy or our privacy standards and procedures. You will need to contact them directly to ascertain their privacy standards.


12. Cookies

12.1 Our website may deposit “cookies” on a visitor’s computer. Cookies are pieces of information that a website transfers to an individual’s hard drive for record-keeping purposes. Cookies are only sent back to the website that deposited them when a visitor returns to that site.

12.2 Cookies make it easier for you by saving your preferences while you are at our site. We never save personal identifiable information in cookies. Most web browsers are initially set up to accept cookies. You can, however, reset your browser to refuse all cookies or to indicate when a cookie is being sent.


13. Changes to our Privacy Policy

13.1 From time to time, we may vary this Policy for any reason. We will publish any changes on this website.

13.2 By continuing to use our website and continuing to provide us with your information, you confirm your acceptance of these changes.


14. Complaints resolution

14.1 We are committed to providing a fair and responsible system for the handling of complaints from parties whose personal information we hold. If you have any concerns regarding the way we have handled your privacy, please send us an email at privacy@count.au or write to us at Level 1, 45 Clarence Street, Sydney NSW 2000. We will address any concerns you have through our complaints handling process and we will inform you of the outcome of your complaint within a reasonable timeframe.

14.2 If after receiving our response, you still consider that your privacy complaint has not been resolved, you may refer your concerns to the Office of the Australian Information Commissioner at www.oaic.gov.au.