Deceased Estate House Clearance

Before launching into this step, it is important to be aware of certain aspects surrounding the home or final residence of the deceased.

For the mourning family, the home or residence will remind them of their loved one and, hence, returning to that place can be very emotional. Bear in mind that the family may want to spend some time in the deceased person's residence as part of their mourning process and for closure.

Furthermore, the deceased person's belongings and other items found in the home or residence may have great sentimental value to certain individuals. Therefore, the desire to take possession of specific items by a Beneficiary is very likely.

As the Executor or Administrator, it is your responsibility to know when to dispose of the deceased person's belongings. Tell the Beneficiaries that all the deceased person's items form part of the Estate and can only be distributed once officially recorded and divided after the total value of the Estate is known; that is, unless certain items are specifically willed to a Beneficiary as outlined below in Step 16.2 – Specific Items Willed to a Beneficiary.

Note: Removing an item from the deceased person's Estate may be considered a crime if it is disputed by other Beneficiaries.

It's important to complete the Home Contents & Personal Belongings Inventory (part of the Light Executor Checklists & Tools Package) as soon as possible and continuously update it to have a full overview of all items that make up the Estate.

Note: Before moving anything, it may be essential to put in place home and contents insurance if not already done. This will protect you as the Executor or Administrator and all Beneficiaries of the Estate during the administration process, which can often extend beyond six months.

Switch off any electrical equipment that are not required to save electricity, remove any perishable goods from fridges, freezers and any other storage appliance or unit, defrost freezers and keep doors of fridges and freezers open to avoid mould build-up.

If time is of the essence, furniture and belongings can be packed and stored in another location while the Deceased Estate is being assessed and prepared for distribution by the Executor.

When someone dies, who gets their belongings? Is removing items before Probate allowed?

Notwithstanding the aforementioned, if the Will names specific items that are intended for a Beneficiary, it may be easiest if those Beneficiaries are asked to collect the specific items as soon as possible. If the item can be identified, the Beneficiary may take possession of the item without waiting for the division of the Deceased Estate.

Note: Gifts or items bequeathed to specific Beneficiaries named in the Will can be distributed before Probate. We recommend you make a record of these by using the simplyEstate Home & Contents Register. Include a photograph and description of the item, the Beneficiary's name, pick-up date, and signature so you have clear documentation on hand in case a claim for that item is made at a later stage.

All other items belonging to the deceased person that are not specifically willed, form part of the Estate and will be distributed once the total value of the Estate is known.

16.3.1 Overview
16.3.2 Dependents or Joint Owners Living in the Deceased's Property
16.3.3 Executor Living in the Deceased's Property
16.3.4 Non-Dependents Living in the Deceased's Property
16.3.5 Beneficiaries Living in the Deceased's Property
16.3.6 Rent Payment and Beneficiaries Agreement

16.3.1 Overview

What happens if one of the children has been living in their parents' house after they die in Australia? Will a jointly owned property go directly to the surviving owner? Can an Executor or Beneficiary live in a deceased person's house?

The dynamics between dependents, joint owners, and non-dependents living in the property of the deceased, and the subsequent rental of the property to a Beneficiary or the Executor can be complex, with legal and financial implications. Here are the key points:

16.3.2 Dependents or Joint Owners Living in the Deceased's Property

If a dependent or joint owner is living in the property, they often have rights over it, especially if it's their primary residence.

• Joint Ownership: For joint owners, if they own the property as 'joint tenants' (joint proprietorship), it's understood that the people registered as joint tenants own the property 100% jointly. Hence, in the event one of them passes, the surviving owner(s) automatically inherit the deceased person's share of the property by virtue of 'the right of survivorship'.
• Tenants in Common: If the property is owned as 'tenants in common' (where there is a defined ownership share of a property title, e.g., 60/40, 50/50, etc., and profits, losses, and risks are distributed based on the defined ownership share), the deceased person's share would form part of their Estate. If there's a Beneficiary of the deceased person's share (expressly stated in a Will), the wishes of the Testator will be followed. In the absence of a Will, pertinent state laws will apply.

In the case of a dependent, they may have a claim on the Estate, especially if it's established they have been financially reliant on the deceased. We recommend seeking legal advice by a probate lawyer near you.

16.3.3 Executor Living in the Deceased's Property

It must be remembered that an Executor's primary duty is to protect and administer the Estate and to ensure the Beneficiaries receive their rightful share. An Executor can only benefit as far as what they are entitled to as defined in the Will.

If the Executor is residing in a property of the deceased which forms part of the Estate, the Beneficiaries can compel the Executor legally to put the house up for sale. Moreover, the Executor may be required to shoulder any legal fess related to a court order.

However, if the Executor living in an Estate property does so out of convenience; that is, to administer the Estate and oversee any work that needs to be done to make the property more saleable, it may be considered more acceptable. Allowing the Executor to live on the property will also help the Estate save on expenses (e.g., the Executor's only other alternative may be to live in a hotel, if living far away) and can reduce the amount of time needed to make an inventory of items or possessions, prepare the property for sale, as well as work as a deterrent for thieves and vandals.

In cases where the Executor owns the property in joint tenancy with the deceased, the right to survivorship applies, so the property won't form part of the Deceased Estate. Of course, if the ownership arrangement of the Executor with the deceased is as tenants in common, the share of the deceased will go to the Beneficiaries named in their Will.

16.3.4 Non-Dependents Living in the Deceased's Property

Non-dependents living in the property don't have the same rights as dependents or joint owners.

If they are not Beneficiaries of the Estate, they may be required to move out unless there is a legal tenancy agreement in place. So, if there's a tenant in the property, the Executor is required to wait for the end of the lease prior to selling the house, or they can also sell the property whilst it is tenanted.

16.3.5 Beneficiaries Living in the Deceased's Property

If there's a Beneficiary already living in the property, all the Beneficiaries need to give their express consent if they wish to allow their fellow Beneficiary to continue residing in the deceased person's home.

The same applies in situations where the Executor is also a Beneficiary. This implies the Executor has been in charge of maintaining the property and shouldering related expenses.

In such cases, the other Beneficiaries may be required to pay their share of the costs for property maintenance until the house is sold. They may also decide to offset those costs against any rental income that the Estate would have earned if the Executor (and fellow Beneficiary) were not residing in the home.

A deceased person's property may also be rented out to a Beneficiary or the Executor. The rent would be paid to the Estate, which can help cover ongoing expenses such as utilities, insurance, and maintenance until such time they agree to sell or rent out the home in the market.

But if the Executor is also the sole Beneficiary of the property, they can reside or continue living in the home even before the distribution of assets.

16.3.6 Rent Payment and Beneficiaries Agreement

If the deceased person's property is to be rented out, all Beneficiaries or the Residuary Beneficiaries of the Estate would need to agree on rent payments. The rent paid would be income for the Estate and distributed according to the deceased person's Will or intestate succession law.

If the Beneficiaries decide to sell the home, the property would be prepared for sale accordingly. Any income or profit from the sale would again be part of the Estate and divided according to the Will or intestate succession law, outlined in Step 13.

Note: It's important to note that each situation is unique, so it's crucial to seek legal advice, as the laws concerning Estate Administration, inheritance, and property rights can be complex and may vary depending on the state or territory. An Estate Administration expert or solicitor can provide advice tailored to the specific circumstances.

When it comes to this step, a common question people ask is: Who values house contents for Probate?

All contents of the deceased person's last residence, or the remaining contents after the Beneficiaries have taken possession of willed items, should be valued by a professional valuer.

As the Executor or Administrator, you should discuss and agree with the Beneficiaries whether or not the remaining contents are to be sold for cash or retained and distributed to Beneficiaries.

From experience, cash is easier to distribute so long as items with a sentimental value had been identified before the sale and communicated to all Beneficiaries with sufficient notice to provide them an opportunity to claim such items.

This step applies whether you're referring to Deceased Estate house contents in Perth or elsewhere in Australia.

Cleaning the house of the deceased is an essential part of Estate Administration in Australia, and the process is often referred to as a 'Deceased Estate clean-up'. This process isn't to be taken as a straightforward Deceased Estate cleaning task or about physical tidying up. It also bears significant emotional, financial, and legal implications.

The principal purpose behind the clean-up is to prepare the property for sale or rental, or perhaps to allow other family members or the Beneficiary to move in.

Furthermore, during the clean-up process, valuables, important documents, and other items of sentimental or financial worth are identified and secured. This process is crucial in ensuring all assets are appropriately accounted for in the Estate inventory and that they are allocated according to the deceased person's Will or intestate succession law.

Below are the key steps often followed during a Deceased Estate clean-up:

1. Securing the Property: The first step is ensuring the property is safe and secure to prevent theft, vandalism or damage. Request all keys from family, friends and neighbours. This might also involve changing locks if keys can't be located or installing temporary security systems. (see Step 2.2)
2. Locating Important Documents: Search for legal documents such as a Will, property deeds, bank statements, insurance policies, and personal letters. These items could be vital for the administration of the Estate. (see Step 10 – Documentation of Death)
3. Conducting an Inventory of Assets: An inventory of all assets within the property needs to be created. This is essential for accounting purposes and to ensure fair distribution of assets. (see Step 15 – Determining Deceased Estate Assets & the Residuary Estate)
4. Sorting Through Personal Belongings: Separate items into categories, i.e., to be kept, donated, sold, or discarded. Personal belongings can also include digital assets, such as photos, files and emails. Note: It is recommended to ask family members and Beneficiaries to visit or inform them of the inventory, to confirm nothing they would like to keep will be given away or sold to avoid any disputes. To avoid delays, items may also be stored elsewhere to allow sorting through at a later stage to progress the Deceased Estate house clearance.
5. Professional Appraisal: For valuable items such as art, jewellery, or antiques, consider getting a professional appraisal to ascertain their value.
6. Cleaning and Maintenance: After removing personal belongings, undertake a thorough clean of the property. This could involve hiring a company to clean out the house after the death of the owner, particularly in cases where the deceased may have been ill.
7. Property Repairs: Perform any necessary repairs to ensure the house is in a sellable or liveable condition. This might include repainting walls and cabinetry, replacing carpets and fixtures, and fixing any structural damage.
8. Property Sale or Transfer: Depending on the contents of the Will, the house may be sold, with proceeds distributed to the Beneficiaries, or transferred to a named individual. (see Step 17)

Throughout this process, it is crucial to handle the task with sensitivity and respect for the deceased. It's often an emotional and challenging time for all involved.

Legal advice or assistance from a professional Estate Administration expert can provide invaluable guidance to help navigating this complex and often overwhelming task.

If the deceased lived in a rental property, you most likely want to clear the residence as soon as possible and restore it to its original condition. You can then hand back the property to the managing agent or proprietor and stop paying rent.

If you want to accelerate the clearance, you can pack and store all the furnishings, chattels and personal belongings at a storage facility while the Estate is being administered.

You may need to:

• find out who the letting agent is and inform them in writing of the death;
• request a copy of the rental agreement if you need to determine if the agreement was signed by the deceased person solely as a sole tenant or jointly with another person as joint tenants, and what the lease obligation after death is; and
• understand the relevant state's legislation, as outlined below, to determine if breaking a lease due to family death is allowed and what the notice periods and bond claim procedures are.

If the deceased lived in a nursing home, you most likely want to clear the residence as soon as possible to hand back the room and stop payments.

Make sure you check the agreement and determine the notice period agreed upon. If you cannot find the contract, the nursing home can provide you with a copy that was signed by the deceased.

If the deceased person made a lump-sum payment, you should also remember to claim the Refundable Accommodation Deposit (RAD) refund or aged care accommodation bond. This will be covered again in Step 30 – Estate Bank Account Setup & Transfer of Deceased Estate Property when you request transfer of assets to the Estate.

Refer to the My Aged Care government website for more information on RAD refund claims.

Note: If you want to accelerate the clearance, you can pack and store all the furnishings, chattels and personal belongings at a storage facility while the Estate is being administered.

If the deceased lived in their own home, you may not want to or need to clear the residence immediately. The Beneficiaries may agree to clear the home and rent it out to generate income for the Estate during the administration or sell. If this is the path you want to explore, it is recommended you seek advice from a tax specialist as some tax rules may apply once the real estate is used to generate income as an investment.

If you want to accelerate the clearance, you can pack and store all the furnishings, chattels and personal belongings at a storage facility while the Estate is being administered.

Beware of pressure tactics by buyers who may approach you with a below-market offer who may be taking advantage of your situation. Always get a comprehensive valuation done by a specialist or multiple appraisals by real estate agents as outlined in Step 17 – Deceased Estate Property Valuation & Preparation for Rent or Sale.

16.9.1 Overview
16.9.2 Donating
16.9.3 Recycling
16.9.4 Disposing

16.9.1 Overview

Some Deceased Estate household goods or items may be left over or unwanted. After the home or residence has been cleared, specifically willed items are collected by the nominated Beneficiary and any other items are distributed as agreed among Beneficiaries.

Before disposing of any unwanted remaining items, it may be worth checking if a charitable organisation near you may be able to collect and re-use or donate items.

Note: Landfill is the most expensive way of disposing items and, hence, it could pay to do some good for people in need, the environment and the save some money for the Estate.

16.9.2 Donating

It's always a good time to give by making a difference in someone else's life by donating unwanted items that are still in good condition. A number of charitable organisations that re-use household items exist, including:

• Clothing
• Accessories
• Toys
• Books
• CDs
• DVDs
• Furniture
• Homewares
• Electrical goods

It is always best to contact organisations beforehand to confirm what items they accept and check if they provide free collection where the closest drop-off location is.

We have listed the most popular charitable organisations below:

Vinnies (St Vincent de Paul Society)
Web: Find out more here
Phone: 13 18 12
Address: Find a shop near you here
Collection: Some shops do offer collection, please contact your nearest shop to check availability

Salvos Stores (The Salvation Army)
Web: Find out more here
Phone: 13 SALVOS (13 72 58)
Address: Find a shop near you here
Collection: Make a free collection request here

Donation Bins
Web: Find donation bins near you here
Phone: 13 18 12
Address: Find a shop near you here
Collection: Some shops do offer collection, please contact your nearest shop to check availability

City and Town Council 'tip Shops’
You can check if the deceased person's council offers a 'tip shop' to give unwanted but reusable items to. Contact the local council here:

Give Away Online
You could also sell or advertise your unwanted and reusable items for free pick-up on:

• Facebook;
• Gumtree;
• eBay; and
• other advertisement sites and notice boards.

16.9.3 Recycling

You can help reduce waste that ends up in landfill and save money by separating recycling from general waste. Contact the deceased person's local Council to find out:

• what can be recycled in the yellow-top recycle bin and how much and additional collection would cost;
• when the next verge-side collection is scheduled for and what items can be placed outside; and
• if a 'drop-off site' is available to take other recyclable waste such as:

• large amounts of cardboard;
• old household and garden chemicals/herbicides, paint, batteries;
• (e-waste) electronic/electrical waste items;
• wood and metals; and
• bulky household items.

Other organisations you can contact are:

• Total Green Recycling for items such as laptops, mobile phones – sensitive e-waste; and
• EcoActiv for other items such as electronics, solar panels, power tools, batteries, paint and much more.

16.9.4 Disposing

Contact the deceased person's local Council to find out:

• if a general waste skip collection may be offered, before paying for a private hire as these may be included in the rates where drop-off sites or full verge-side collections are not available;
• what unwanted items can be placed in the red-top general waste bin and how much an additional collection would cost; and
• if a 'drop-off site' is available with 'tip vouchers' included in the rates notice entitling a certain amount of waste to be disposed of through the drop-off site for free.