To get to the stage of distributing an estate, a legal personal representative will have to first be in a position to ascertain what is available for distribution, and what comprises the residuary estate.

A legal personal representative must then see to payment of all the funeral, testamentary and administrative expenses, debts and liabilities, prior to any distribution to the beneficiaries or next of kin, as appropriate. It is by ensuring that all debts of both the deceased and the estate are paid before distribution that a legal personal representative will not be held liable for breach of his or her duties.

The state and territory legislation provides mechanisms to protect the legal personal representative from liability.

See Protection from liability.

Prior to distribution of an estate, it must be established whether the deceased or any beneficiaries, under a will or on intestacy, are bankrupt.

The easiest way to do this is to conduct a bankruptcy search, on the National Persons Insolvency Index (NPII).

Such a search must be conducted because during the term of bankruptcy, a bankrupt's property vests in the trustee in bankruptcy.

See Bankruptcy searches of the deceased and beneficiaries.

Note to practitioners in South Australia: Content within this guidance note does not apply in South Australia

The Probate and Administration Act 1898 (NSW) provides for trustees to be invested with certain powers of maintenance, education and advancement for the benefit of minor beneficiaries, prior to any grant being made by the court.

The Trustee Act 1958 (Vic) empowers a trustee to make payments of income and capital out of a trust for the maintenance, education, advancement or benefit of a minor beneficiary. These payments can be made even though the beneficiary only has a contingent interest. See ss 37 and 38 of the Act.

The personal representative can make a modest distribution to dependents of the deceased for maintenance, support and education at any time after the deceased’s death: s 49A Succession Act 1981 (Qld).

The personal representative may also, where necessary, make an interim distribution to beneficiaries.

The personal representative can make a modest distribution to dependents of the deceased for maintenance, support and education at any time after the deceased’s death: s 59 Trustees Act 1962 (WA).

The personal representative may also, where necessary, make an interim distribution to beneficiaries.

See Interim distributions and maintenance distribution.

There may additionally be a positive duty on a trustee to make an interim distribution for maintenance of a needy beneficiary: Gonzalez v Claridades .

In the ACT, the executor or administrator may only make an interim distribution to a minor beneficiary following obtaining a grant of probate. Further, following the grant of letters of administration, the administrator can apply to the Supreme Court for an order regarding distributions for the maintenance and advancement of children.

See Interim distributions and maintenance distribution.

Items of both realty and personalty are dealt with in the administration of a deceased estate.

A legal personal representative must first determine whether the particular item forms part of the deceased estate, and the title to same is not held by a company, family discretionary trust, or as a joint tenant.

See Realty v personalty.

Where either real or personal property of the deceased was owned by the deceased and another as joint tenants, then by virtue of the rule of survivorship, title to same will pass to the surviving tenant.

Realty or personalty owned by a deceased as a joint tenant cannot pass through the deceased's will, nor do the rules of intestacy apply to property owned in this way.

Therefore, where the only property owned by the deceased, both real and personal is owned jointly, then there is no estate to administer.

See Joint tenancy.

If the deceased held items of realty and personalty in his or her sole name, or as a tenant in common with one or more others, then these item/s pass through the deceased's will and form part of the estate for administration and distribution purposes. If the deceased died intestate, then the rules of intestacy will apply in the devolution of this realty and personalty so held.

See Tenants in Common.

Generally, transmission of assets in a deceased’s estate will require a grant of probate or a grant of letters of administration, which will include a copy of the inventory of property submitted with the legal personal representative’s application for the grant.

Also usually required are the documents which note the deceased's title to the asset, and the required transmission document.

These documents together will be submitted to each asset holder, subject to each of their specific requirements, and will see the transmission to either the legal personal representative, or the beneficiary directly.

Generally, transmission of assets in a deceased's estate into the name of the personal representative will require the production of a certified copy of the grant of probate or a grant of letters of administration along with any other relevant forms and evidence of title. It is sometimes not necessary to transmit the asset into the name of the personal representative prior to sale (ie shares).

In some circumstances, transmission of assets in a deceased's estate will require a grant of probate or a grant of letters of administration.

The documents which note the deceased's title to the asset and the required transmission document will also be required to be submitted to each asset holder to enable the asset to be transmitted to either the legal personal representative, or the beneficiary directly.

Generally, transmission of assets in a deceased's estate will require a grant of probate or a grant of letters of administration.

Transmission of real estate will always require a grant of probate or administration, and is usually required for transfer of shares, vehicles and other assets that have titles or records that need changing. Banks will almost always require the grant to deal with accounts unless they are particularly modest accounts.

Also usually required are the documents which note the deceased's title to the asset, and the required transmission document.

These documents together will be submitted to each asset holder, subject to each of their specific requirements, and will see the transmission to either the legal personal representative, or the beneficiary directly.

In SA, a grant of probate or a grant of letters of administration will be required in all cases where the deceased held realty (land) in his or her name either solely or as tenant in common with one or more others. Whether a grant is required in other cases will depend on the entities or institutions holding the assets and the monetary thresholds they each set for release of assets without a grant. Currently many banks and other institutions only require a grant for the release of assets of the sum of $50,000 or more in total value, but this is not universal and enquiries should be made of each individual entity holding assets.

Generally, transmission of assets in a deceased's estate will require a grant of probate or a grant of letters of administration, which will include a copy of the inventory of property submitted with the legal personal representative's application for the grant.

Also usually required are the documents which note the deceased's title to the asset, and the required transmission document.

These documents together will be submitted to each asset holder, subject to each of their specific requirements, and will see the transmission to either the legal personal representative, or the beneficiary directly.

Generally, transmission of assets in a deceased's estate will require a grant of probate or a grant of letters of administration, which will include a copy of the inventory of property submitted with the legal personal representative's application for the grant.

Also usually required are the documents which note the deceased's title to the asset, and the required transmission document.

These documents together will be submitted to each asset holder, subject to each of their specific requirements, and will see the transmission to either the legal personal representative, or the beneficiary directly.

If a deceased held assets outside of the jurisdiction in which they resided at the time of his or her death, enquiries must be made with the particular asset holder as to their requirements for the release of the asset to the estate.

See Assets outside of the jurisdiction.