Administering an Estate
If you are an executor or a potential beneficiary of a deceased estate, you have many rights, and some obligations.
But relax. We are here to help.
Laypersons are often appointed as executors, but you are not expected to act unaided. It is customary to retain solicitors experienced in estate work, to help you administer the estate. In fact more often than not our executor clients leave it to us, as their solicitor, to collect the estate funds into our trust account, and advise and assist the executors on all aspects of estate administration.
The position of executor is one of a trustee, with all the incumbent duties and responsibilities. See a more detailed outline below. You cannot ignore these responsibilities, and failing to get experienced legal advice, could be the first of many mistakes.
Basically the executors are required to take charge of the deceased’s assets and property, discharge liabilities of the estate and distribute the net assets to the beneficiaries. Specifically executors are to arrange the funeral, prove the will, collect the assets and preserve them, ascertain and pay the debts of the estate, making sure that taxes are paid and finally distribute the assets to the beneficiaries accordingly to their entitlements. Where there are a number of beneficiaries the assets may have to be valued and a check made of any superannuation trustee to find out whether superannuation monies form part of the estate or whether they pass to nominated person/s under the Trust Deed. The executor/s are under a duty to keep estate accounts and record all dealings with the assets and liabilities of the estate.
The Executor is the person named by the deceased in their will whom they want to administer their estate to ensure that the beneficiaries receive their inheritances. There may be one or more executors. They will probably need the assistance of a solicitor to assist with the administration of the estate. Lay persons who act as executors or administrators have a fiduciary duty to act in the best interests of the estate and the beneficiaries.
The role of an executor can be an onerous one as they are charged with the responsibility to administer the financial assets left by the deceased. If they fail to discharge their duties or acted inappropriately they can be sued.
Once all the assets have been located it is up to the executor/s to apply to the Probate Registry of the Supreme Court for a grant of probate. Probate is a court order confirming that the will is valid and the executors have the right to administer the estate. In order to do so there are a number of matters which have to be attended to and the application has to be made in proper form supported by documentary evidence of death, proof of proper signing and attestation of the will and details of the assets and liabilities. Obtaining probate usually takes about 6 weeks, and includes public advertising. The whole process of administering an estate normally takes approximately one year.
Until the estate is administered beneficiaries do not have any proprietary right in the estate, nor do beneficiaries have no power to make decisions about the estate. However Beneficiaries do have a right to see the estate properly administered, and can petition the court for orders directing the trustee to act properly, or account for estate funds. The trustees hold the legal title and the beneficiaries have an equitable interest in the property and it is only when the trustee distributes assets to the beneficiary/s that they obtain both the legal and equitable title to the property.
Can executors be personally liable when acting in this capacity?
Yes! Executors are expected to act in the best interests of the estate and the beneficiaries. They are personally liable for fraud, breach of fiduciary duty, failing to comply with the terms of the will or where they have improperly entered into a contract during the course of administration. The executor is expected to administer the estate efficiently and competently in accordance with the terms of the will. With many estates this can be an onerous and time consuming process, which may require expert legal assistance so that the executor can meet their legal obligations. An executor must act promptly particularly in times of a falling market to preserve the value of the estate. The executor who stands in the shoes of the deceased may be called to defend the terms of the will against dissatisfied family members as well as persons who consider that the deceased was responsible for their welfare under the Successin Act Qld.
Examples of some of the foregoing are where:
- Executors take too long to administer the estate
- Assets have not been secured or insured or realised as necessary
- Assets have been improperly distributed as the will was not fully understood
- The estate accounts have not been properly finalised as all debtors have not been paid
- Assets have been distributed at less than fair value
- The executor/s has/have attempted to profit from their office beyond applying for commission
The Role of the Solicitor
P.M. Lee & Co. Lawyers can assist the executor with obtaining probate; dealing with the deceased’s assets; drawing up a statement of assets for realisation and distribution to the beneficiaries, advising on the manner of distribution; advising on contingent liabilities eg. taxes and mortgage payments; and advising the executor about the traps and pitfalls associated with dealing with an estate.
The Executor should move as soon as possible to obtain probate to reduce the contingent risks associated with this position to determine the validity of the will, their position as executor and allows claims against the estate to be settled and assets distributed to beneficiaries quickly.