In the absence of an express or implied provision for an Executor by the deceased a Court will appoint an administrator, typically the closest surviving next of kin.
The Executor’s Duties
If you have been appointed the Executor or administrator of a deceased person’s Estate, you have a number of legal rights and obligations. These duties and obligations include:
- reducing the Estate of the deceased into possession. This means the Executor must arrange for the assets of the deceased to come into the control of the Executor
- paying the debts of the deceased
- ensuring that all of the assets are properly secured and insured. Insurance companies and other institutions should be advised of the passing of the deceased
- ascertaining if the deceased had any life insurance policies
- ascertaining if the deceased had an interest in any businesses, and to maintain these interests until they can be appropriately dealt with
- organising the taxation affairs of the deceased and the deceased’s Estate. Tax declarations may have to be obtained and it is advised that financial advice is sought
- keeping records – the Executor should keep very detailed records of all dealings with the Estate
- distributing the residue of the Estate, after payment of all expenses, to those who are entitled as beneficiaries under the Will
One of the first duties of the Executor of an Estate is to arrange the funeral.
The personal representative has the authority to make all decisions regarding the funeral to the exclusion of the next of kin. However in most instances close family or friends attend to the funeral arrangements.
Any costs incurred for the funeral are payable as a first charge against the estate and take priority over any other claim. The arrangements of the funeral must be appropriate, bearing in mind the financial capacity of the Estate of the deceased.
If the deceased had any dependants, minor children or pets, arrangements must be made for their adequate and appropriate care and welfare.
If the deceased lived alone, the Executor must take reasonable steps to ensure the safe custody of the deceased’s home, motor vehicle, possessions etc.
Administration of the Estate (estate administration)
The Executor should attend to the following as soon as possible after the deceased has passed away:
- Obtain a copy of the deceased’s death certificate
- Obtain a copy of the last Will of the deceased
- Open a bank account in the name of deceased’s Estate
- Ascertain all of the assets and liabilities of the deceased. There may need to be a consultation with the deceased’s accountant, legal representatives and financial advisors to fully ascertain the extent of the deceased’s Estate
- Make applications to the court for a grant of probate or representation. Specific legal advice should be sought as to whether a grant of probate or grant of representation is required and the appropriate application that should be made
- Dealing with the assets of the Estate. Once the assets of the Estate of the deceased have been ascertained the Executor will then determine whether the assets are to be distributed directly to the beneficiaries, or are to be sold and the proceeds distributed. Again legal and financial advice should be sought before the assets are dealt with.
Liability of the Executor
The appointment as a personal representative of an Estate has significant obligations, personal risks and potential liabilities.
Executors owe a duty of care to the beneficiaries of the estate to exercise the same degree of care as would an ordinary prudent business person. The Executor could be personally liable for a breach of this duty.
Given the significant legal obligations and responsibilities expected of a personal representative of an estate it is imperative that you get the right advice as early as possible, as estate administration can be a hard and challenging time.
The team at FC Lawyers have extensive experience in all aspects of estate administration and are well-equipped to assist and advise on the administration of any estate no matter how small or large.
We also understand the implications of cross border and international obligations and have acted for executors who are based overseas and where assets are dispersed around the world.
If you have any questions regarding estate administration or your legal obligations, please contact our Wills and Estates team today.