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Deceased Estates

Administering an estate – duties of executors and administrators

An executor is the person appointed under a Will to deal with a deceased person’s affairs after he or she dies. An administrator has the same role however is appointed by the Court through Letters of Administration when a person dies intestate (without a Will) or the person appointed under the Will is unable to act as executor.

Executors and administrators are the legal personal representatives of a deceased person and have significant legal responsibilities. They must ensure they are protected from potential liability in the event of a claim against the estate.

In addition to the practical matters required immediately after a person dies, executors and administrators must identify, secure and protect estate assets, pay estate debts and distribute the proceeds of the estate in accordance with the Will or the laws of intestacy. During the administration process they may deal with accountants, financial institutions, real estate agents and brokers, often under the guidance of an estate lawyer.

Executors and administrators often need to consider matters outside their area of expertise, such as the tax implications on the sale or transfer of assets, the order of payment of debts (particularly in the case of an insolvent estate), the preparation of estate tax returns and the potential for a family provision claim to be made. Obtaining professional advice and guidance in these areas is essential.

What is Probate?

An executor may need to apply for a grant of probate through the Supreme Court before administering an estate. Probate is a Court order declaring that the final Will of the deceased is valid. This authorises the executor to administer the deceased’s estate in accordance with the Will.

Without probate, an executor may not be able to access the deceased’s bank accounts or deal with and distribute assets to beneficiaries. The requirement to obtain probate usually depends on the size of the estate, the nature of estate assets and how they are held. Most financial institutions will require a grant of probate to release funds over a specified amount. Probate is also required to transfer real estate that was not jointly held between the deceased and proposed transferee.

An application for probate should be filed by the executor in the Supreme Court within six months of the deceased’s death. As part of the process, the assets of the deceased are identified and valued, and outstanding debts determined. If no requisitions are raised, probate is granted.

The process of administering an estate from the time of death to the final distribution of assets can take at least a year. It is important that any debts be settled before the estate is distributed, otherwise the executor may find themselves liable.

Letters of Administration

When a person dies intestate, or a person appointed as an executor under a Will is unable to fulfil that role, an interested person may apply to the Supreme Court for Letters of Administration.

Letters of administration allow the interested person, known as an administrator, to deal with the deceased’s estate in the same manner as an executor would following a grant of probate.

Contested Applications for Probate or Letters of Administration

Unfortunately, not all deceased estates can be administered without a dispute between nominated beneficiaries or, as is often the case, would-be beneficiaries.

When disputes occur, we can advise on a range of issues including:

  • who should have the authority to administer the estate;
  • whether any document or recording could constitute a valid Will;
  • in the case of competing documents, which of those documents or recordings might constitute the deceased’s last valid Will;
  • the likely costs involved if the dispute becomes litigated;
  • potential outcomes if a dispute becomes litigated; and
  • alternative methods of resolving a dispute, like negotiation and mediation which will enable a contested application to be resolved.

Dealing with a deceased estate can be distressing and often involves complex legal issues at a time of grief and loss. Executors and administrators may need to liaise with a range of stakeholders and complete several documents and carry out processes to ensure the estate is administered in accordance with the Will or laws of intestacy.

Our experienced lawyers deal with small, large and complex estate matters and a range of estate disputes. We can advise executors on their obligations to help them carry out their duties lawfully, while minimising costly processes wherever possible.

If you need any assistance contact one of our lawyers at [email protected] or call (02) 9708 2222 for a no-obligation discussion and for expert legal advice.