The role of legal personal representativeProbate & Deceased Estate Administration
A person might be appointed to that role by being named as the executor in the Will or, if there was no Will, by being appointed administrator of the estate by the Supreme Court.
The role of legal personal representative is a responsible position and involves a number of tasks. At McNab, McNab & Starke we guide you through the process and provide the necessary assistance to help make it as trouble free as possible.
The duties of an executor include;
Making the necessary funeral arrangements
It is often the case that the family is in agreement about the arrangements to be made. Often the deceased person has made his or her wishes known and the family agrees to those arrangements being put in place.
As a matter of law, it is the legal personal representative who makes the decisions in times when agreement cannot be reached. Directions in the Will about burial or cremation or funeral arrangements are not binding.
Obtaining a grant of Probate or grant of Letters of Administration
The executor of a Will, or the person who wants to be the legal personal representative when there is no Will, must act promptly and make the application to the office of the Registrar of Probates to obtain the grant of Probate or grant of Letters of Administration as the case may be.
Part of this process involves ascertaining the assets and liabilities of the estate, and the values of the same, as at the date of death. At McNab, McNab & Starke we write out to all relevant organisations and obtain this information on behalf of the legal personal representative.
Clarify the terms of the Will
In some instances the Will may not be clear and an executor may need to make an application to the Court for directions or an interpretation or, in some cases, corrections.
Furthermore, each State of Australia has its own laws regarding Wills & Estates. If the deceased had assets situated interstate, or overseas, different laws might apply to those assets and it may not be just the Will alone that governs how the assets are to be dealt with and distributed. An executor will need to clarify the position. This is a complex issue that we can help with.
In some cases there may be a dispute over whether the last known Will was valid. There may be a person who claims that he or she was inadequately provided for in the Will. It is the executor’s responsibility to engage lawyers to handle these issues and to make the decisions concerning the resolution of the problems.
Collect and preserve the assets of the estate
The legal personal representative needs to locate;
- The titles to any real estate in the name of the deceased;
- Bank statements and passbooks to identify the organisations in which the deceased had monies deposited;
- Documents that indicate current investments that the deceased had;
- The names of any insurance companies in which the deceased held policies. These might include life insurance, house insurance, household contents and car insurance;
- The main chattels of value. This would include details of any cars, jewellery, cash, art objects of value; and
- Any other assets of value.
Once identified, those assets in some cases will need protection. This includes taking appropriate steps to prevent theft or damage, and insuring them against loss. If the deceased lived alone and the house is vacant, the insurance company needs to be notified and enquiries made about whether it has any special requirements otherwise the policy may not respond if a claim is later made on it.
Once monies are received on behalf of the estate, if there is a prospect that there may be some time that might elapse before those funds can be paid out to the beneficiaries, the funds need to be invested so that they are not left idle.
Ascertain any liabilities of the estate
The legal personal representative also needs to ascertain the debts that the deceased had. In due course these debts need to be paid from the assets of the estate.
Bank accounts in the deceased’s sole name are frozen when the Bank becomes aware that the person had died, and funds will not be released until certain procedures are carried out. These can take some time to complete. The payment of the funeral account is the one exception. Banks will normally debit an account and draw a cheque in favour of the funeral director to pay such an account.
In some cases where it cannot be known for certain whether all creditors of the deceased have been identified, a notice calling for creditors to give notice of their claims is placed in a local newspaper.
The executor needs to arrange for all relevant tax returns to be filed at the Australian Taxation Office. This would include the final return to date of death and estate returns from that time on until the estate is fully administered.
In some estates there are tax consequences that flow from the decision to on the one hand sell an asset and distribute the net proceeds of the sale to a beneficiary or alternatively to transfer the asset itself to the beneficiary. Appropriate tax advice needs to be obtained.
A record needs to be kept of all financial transactions of the estate. The legal personal representative is in a position of good faith and must be able to account for all monies received and paid out.
Provision of documents and information to beneficiaries
Beneficiaries need to be located, identified and advised of their entitlements in the estate. In some cases this also means providing them with a copy of the Will.
In addition, beneficiaries should be given updates at appropriate times during the administration of the estate so that they know when they might expect their entitlement to be distributed to them.
Steps should be taken to consider whether any of the beneficiaries are current bankrupts.
Some estates go beyond simply payment of debts and distribution of the net estate to certain named beneficiaries. It may be that some part of the estate needs to be held for a number of years. An example of this is where a cash sum has been left to a child who has to attain the age of 21 before being able to call for the monies. Pending the beneficiary attaining the age the executor needs to invest the monies prudently. The executor may have been given power to spend part or all of that child’s share on the child for the purpose of maintenance and support. If so, the executor has an ongoing obligation to inform himself or herself of the child’s circumstances and make appropriate use of the discretion to make payment.
At McNab McNab & Starke we carry out many of these tasks for clients who are legal personal representatives of an estate and provide advice to clients on how best to carry out their role.
If you would like to know more about the role of a legal personal representative, whether it be because you have undertaken that role or considering to do so, or because you are a beneficiary who has concerns about the way that an estate is being managed, feel free to contact us to discuss the matter.
We can help
We will respond within the next business day. You can also call 03 9670 9691.