Topic 4 - Estate Administration
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Topic 4 – Estate Administration
Topic Objectives
Describe the duties, powers and liabilities of an executor;
Explain the implications on an estate if an executor dies;
Identify who may be a suitable executor for a client’s estate;
Define probate and explain the process of probate including situations where probate
is not necessary;
Outline the administration of an estate from an executor’s point of view; and
Outline the role of trustees of testamentary trusts.
Duties of the executor The process of probate is set out in the Administration Act 1903 (WA). An executor is the person to whom the execution of a will, that is, the duty of carrying its
provisions into effect, is confided by the will-maker. The duties of an executor are to:
organise the funeral arrangements;
locate and prove the will;
collect the estate and, as necessary, convert it into money;
determine the liabilities of the deceased;
pay the debts in their proper order;
invest the assets of the estate to create income while the estate is being administered;
maintain the assets of the estate in good condition;
deal with any challenges against the estate;
complete tax returns for both the deceased and the estate; and
pay the legacies and distribute the residue among the persons entitled. Estate Planning – Topic 4 Page 1
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Suitability for the executor’s role
An executor must be at least eighteen (18) years of age and of sound mind. If a person
does not wish to be appointed an executor, though they are named in a will, they can
renounce Probate.
The choice of an executor depends largely on the complexity of the will, the personal
circumstances of the person making the will, and the value and extent of the assets of the
estate. It is wise for the person to be named to be consulted on this matter prior to making
the will as the executor named has no legal obligation to act and may refuse to accept the
appointment. The executor should be informed where the will is kept so that it can be
located when the need arises.
The executor has complete control over the assets of the estate and must therefore be
completely trustworthy, must have the knowledge and ability required to carry out the
necessary duties, and must have the time to give those duties the attention they deserve.
The most commonly appointed person to act as an executor is the beneficiary of the
residuary estate, that is, the person identified in the will who after each of the specific
gifts, will take the remainder of the will maker’s estate. It is best to avoid appointing a
person who may have a conflict of interest. By way of example, a business partner may
be an inappropriate executor in circumstances where the business partner may wish to
purchase from the estate the will-maker's interest in the business. Other commonly
appointed executors include the solicitor, the accountant and a public trustee company.
The length of some trusts set out in the will or other factors of value and complexity often
make it desirable for a trustee company or the Public Trustee to be appointed solely or
with other persons.
The executor's role is voluntary and without reward unless the will-maker has specifically
allowed an executor to be paid a fee for services performed. The Public Trustee and the
Trustee Companies have authority under Acts of Parliament to charge commission for
their services. An individual acting as executor can apply to the Court for commission.
It is customary that a person that is appointed an executor is also appointed as a trustee of
any trust created under the will, however, this remains subject to the particular
circumstances of the will.
Joint executor
It is possible and sometimes desirable to appoint two or more persons to act jointly or in
the event of the prior death of the first choice. Where the deceased has appointed more
than one executor of his/her will, each executor is entitled to apply, or not apply, for a
grant of Probate of the deceased's will.
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Those executors who apply for (and receive) a grant of Probate, have equal responsibility
and liability in the administration of the deceased's estate (even if, for example, one is a
professional executor or trustee and one is not).
Any executor who does not apply for a grant of Probate simply does not act as an
executor and therefore has no responsibility for the administration of the deceased's
estate. That person has no right to enquire into the administration of the estate. However,
he/she may apply to take out a grant of Probate at any stage during the administration of
the estate, and once having received a grant, will become jointly liable and jointly
responsible with any executor(s) who took out the initial grant.
Liability of the executor
Once the executor has permission from the court to deal with the assets of the estate, they
must act promptly to call in the assets of the estate and determine the estate liabilities.
Where there is any loss suffered through the neglect of an executor they may be held
personally responsible.
The executor is able to claim expenses such as funeral, accounting and legal fees from the
funds of the estate. If an executor engages a professional person for specialised advice or
to carry out the duties of administration, then the fees of that person are charged against
the estate.
No executor appointed
Where no executor is appointed in the will or when a person dies intestate, it will become
necessary to apply to the court to appoint an administrator to administer the estate. The
court will have regard to the rights of those people named in the will when appointing an
administrator. The court will appoint someone who has an in interest in the estate but
they have discretion to appoint someone else if the circumstances warrant.
If the executor dies
If the executor administering the estate dies, then any surviving executor appointed under
the will continues as the executor of the estate. If the sole executor to whom Probate has
been granted dies, then the executor to whom Probate is granted of his/her estate is
granted will become executor by representation of the first estate. Where the executor
dies prior to taking out a grant of Probate and no alternate is appointed, the court has the
power to appoint an administrator.
Protection of estate assets
As soon as possible the executor must protect the estate assets and if possible take
possession of them. In particular the executor must ensure that the deceased’s home, car
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and other assets are insured. If something happens to the assets of the estate, the executor
may be personally liable.
In order to take possession of the deceased’s estate it is wise for the executor to transfer
the deceased’s assets into their name “as executor of the estate of the deceased person”
and open a bank account in their name “as executor of the estate of the deceased person.”
There will not be any tax or stamp duty obligations on a transfer at this stage in the
process.
Estate debts
An executor of the deceased’s estate is personally liable to pay the estate debts out of the
estate, ideally within 12 months from the date of death. It is therefore prudent for the
executor to delay the final distribution to beneficiaries until they are certain that have
been paid. Estate debts are:
all tax owed by the deceased and the estate of the deceased;
all debts that the deceased owed; and
all the costs of administering the estate such as funeral, legal and accounting costs.
All debts are paid from the estate assets. If the estate does not have enough liquid assets
to satisfy the debts then the executor will need to consider selling estate assets (like a
home or shares).
If the estate does not have enough assets to satisfy the debts then the estate is insolvent
and may need to be declared bankrupt. If this is the case then the executor should seek the
advice of an accountant or lawyer specialising in the area of bankruptcy. Generally all
secured and some special creditors are paid first. If there is anything left the estate’s other
creditors get so many cents in the dollar. Advertising to creditors
The executor can publicly advertise that they are about to distribute the estate. This alerts
creditors that they need to inform the executor about any debts or the executor will
distribute the estate. Any unknown creditors then have to collect the debt directly from
the beneficiaries. Advertising only protects the executor
. It does not stop the creditor
from seeking payment direct from the beneficiary. This process is particularly important
where there may be debts in a personal capacity that the executor is no aware of, for
example a person operating a business as a sole trader.
The executor should advertise in both the WA Government Gazette
and in a major
Western Australian newspaper (eg. The West Australian
or Sunday Times
) as follows:
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FULL NAME OF DECEASED PERSON late of [deceased’s usual last address]
[Occupation on death certificate - eg bus driver]
. Creditors and other persons having
claims (to which section 63 of the Trustee’s Act 1962 relates) for the estate of the
deceased who died [date of death]
are required by me the trustee [executor‘s name and
address]
to send particulars of your claims to me by [choose a date at least one month
from the date the advertisement is published and fully circulated
]
, after that date I
will convey or distribute the assets having regard only to the claims of which I have
notice.
Probate and Letters of Administration
To enable an executor to administer the deceased’s estate they should obtain Probate, or
Letters of Administration if appointed as an Administrator.
Only the executor(s) named in the deceased’s will can obtain Probate. If the executor(s)
named are unable or unwilling to act as executor(s) of the deceased’s estate then another
party may be able to apply for Letters of Administration with the will annexed.
An application for Letters of Administration may only be made by someone who is
entitled to a share of the deceased’s estate. This group includes close family members and
in some instances creditors of the deceased (
Administration Act 1903 (WA) s.25).
What is Probate?
Probate is legal jargon for “proving the will”. A grant of Probate signifies that the court is
satisfied that the will produced is the deceased's last will and that it has been validly
executed. It also signifies that the executor to whom Probate has been granted is entitled
to carry out the administration of the will (
Administration Act 1903
(WA) Part II).
The requirements of the Supreme Court in each State and Territory in order to obtain a
grant of Probate vary enormously. However, some requirements common to most States
are:
an executor’s affadavit (ie a sworn written statement including details of the
deceased's age, date and place of death and the capacity of the executor to take the
grant);
the deceased's last will;
an inventory of assets and liabilities in the estate; and
a death certificate.
If the Supreme Court has questions in regard to an application for Probate or Letters of
Administration it may issue a requisition; for example if there is an inconsistency in the
name of the executor on the will and in the affidavit such as the omission of a middle
name. The answers to requisitions are generally prepared by a lawyer and sworn by the
applicant in the form of an affidavit before a Justice of the Peace.
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Once granted, probate gives an executor absolute and unquestioned authority to
administer the deceased's estate, unless (and until) it is revoked. Processing will take
some weeks, depending on case load at the Supreme Court and whether requisitions are
issued.
What are Letters of Administration?
If there is no will Letters of Administration are issued instead of Probate and different
procedures are applied. The person appointed to administer the estate of the deceased is
known as the administrator rather than the executor. It is highly recommended that legal
advice is sought in this case.
Why obtain Probate or Letters of Administration?
A grant of Probate or Letters of Administration proves that the Supreme Court of
Western Australia has given the executor or administrator the authority to administer the
estate of the deceased.
Once the executor or administrator has the grant they are in a position to complete the
administration of the estate. Basically they need to need to call in all the assets, pay all
debts and distribute the remainder to the beneficiaries.
With the original or certified copy of the grant of Probate the executor or administrator
has the right to demand any estate assets that may be in the hands of other people. The
court gives the executor or administrator the job of administering the estate.
Can the executor apply for Probate themselves?
The Supreme Court of WA has developed an on-line application to guide an executor
through a simple application. In more complex applications, or where there are
requisitions or substantial assets, it would be appropriate to have his/her lawyer attend to
the difficult legal process of getting Probate. Giving incorrect information to the Supreme
Court can lead to criminal charges. At the very least, mistakes are expensive to rectify.
The executor may well find the beneficiaries suing him/her which is not worth the risk.
The executor should consider asking their lawyer to apply for Probate/Letters of
Administration where:
disagreement exists between the family members on how the estate should be
administered;
someone is threatening to challenge the will or the way the Administration Act
distributes the estate (if there is no will); or
the will is damaged, marked or has a staple hole in it; or
the will is incorrectly signed; or
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the deceased may not have been of sound mind or have been coerced into signing the
will.
How much does it cost to get Probate?
The cost of applying for Probate depends on the degree of complexity and amount of
death duties payable. It does not usually depend on the size of the estate. When engaging
a solicitor, the executor should always get a fixed, written quote first stating exactly what
the lawyer will do. The legal costs are paid out of the estate. However, if the executor does not get a written
quote first, he/she may be forced to pay the costs out of his/her own pocket.
Do I need Probate or Letters of Administration?
The executor will need Probate or Letters of Administration where:
the bank won’t hand over the deceased’s bank account. Banks often want to see a
grant of Probate to release accounts over $6,000; or
there is real estate including homes, units and blocks of land; or
someone refuses to hand over an asset.
Whether or not a grant of Probate is required will depend on the nature of the assets in the
deceased's estate. For example, if all of the deceased's assets were owned jointly with a
surviving spouse, then the spouse can have the assets transferred into his/her name
without a grant of Probate. If the only assets in the sole name of the deceased were small
accounts with banks, building societies etc, then those financial institutions may not
require a grant of Probate in order to release the funds. On the other hand if the deceased
had significant assets in his/her sole name (e.g. real estate), a grant of probate will be
required.
Note that where the testator has paid a refundable deposit to an aged care facility this
must be paid to the estate. Such deposits can be substantial, as discussed later in this
course.
Transferring Real Estate
If the deceased owned land (not joint tenancy land) then the executor or administrator
will need to obtain a grant of Probate or Letters of Administration in order to sell the land
or to transfer the land into the names of the beneficiaries.
Once Probate or Letters of Administration are obtained the executor or administrator
must then make an application to Landgate to have the land transferred into their name as
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“executor (or administrator) of the estate of the deceased person. This is called a
Transmission application. Once this is done the executor or administrator is at liberty to
either sell the property or transfer it into the names of the beneficiaries. While the
executor or administrator can attempt to perform both the transmission and the transfer to
the beneficiaries it is unwise to do so. They should instruct a solicitor to prepare all the
necessary documents to transfer the property.
In order to apply to Landgate the executor will need to ensure that any charges on the
property are discharged: in addition to mortgages and other charges, residential property
may have deferred council or water rates that need to be paid. Stamp duty must also be
assessed and paid. If non-commercial property is transferred directly to a beneficiary this
will b charged at the nominal rate of $20.
Distributing the estate
Where the estate consists of assets the beneficiaries may wish to receive the assets “in
specie” rather than cash. If there are several beneficiaries, and the will does not specify
the treatment of assets, it is advisable for the executor to speak to the beneficiaries first
before assets are sold. They may together decide what is to be sold and what is to be kept.
Obviously if there is no consensus the items in dispute may need to be sold. Where there is more than one beneficiary it may be necessary for the executor to value
the assets of the estate before they are distributed. They should also consider obtaining
financial advice in this area as the distributed assets may carry with them considerable
future tax liabilities, eg capital gains tax.
If there will be a delay in distributing the estate for any reason then the executor should
invest any surplus funds. A financial planner is able to assist the executor to determine
how this is best done. An accountant is able to assist the executor in keeping the accounts
and records of the deceased’s estate in order. The cost of professionals used in the
administration of the deceased’s estate is a legitimate expense of the estate.
Bank accounts
The executor may transfer bank accounts into the beneficiaries’ names, into the executor
name (prior to distribution) or close the accounts themselves ready to distribute the
money. Procedures may differ between banks, but the bank generally needs to sight:
account details;
the original death certificate;
the will and
the grant of Probate or letters of administration.
The executor will need to provide the bank with adequate identification.
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When someone dies there may often be an immediate need to access funds. If there is a
delay by an executor in the grant of probate which results in a delay in the distribution of
the estate assets, dependants can be left without sufficient funds to carry out basic day-to-
day living activities. A beneficiary’s legal right in an estate does not arise until administration is complete.
Until that time a beneficiary does not have title to any of the assets and cannot demand to
be given his/her interest in the estate. An executor may make an interim distribution
pending the final determination of entitlements and the transfer or realisation of assets.
Where it is likely that a beneficiary will need to access funds urgently, eg a spouse, it
may be appropriate to set up at least one joint bank account with the dependant before the
testator dies. If funds are required, the account can be accessed even after death. This
will provide funding until the administration of the estate is complete. Shares
The executor should send the share scrip and a certified copy of the grant to the
company’s share registry (the address may be on the share scrip). The registry will ask
the executor to complete a declaration.
If the deceased had substantial or complex investments then the executor may ask the
deceased’s financial adviser or accountant to arrange for the required transfers.
Cars
If the deceased owned a car then it will need to be transferred. The police department
licensing centre requires the deceased’s drivers licence and to see and copy the enclosed
certified grant.
However if the executor is not applying for Probate or Letters of Administration then
he/she must take to the police department licensing centre the deceased’s driver’s license,
a certified copy of the will and a certified copy of the Registration of Death certificate.
They will then at your instruction either transfer the vehicle into the executor’s name or
direct into the name of the beneficiary entitled to the vehicle under the terms of the will.
What happens if the beneficiaries are under 18 years of age or have a disability?
Sometimes the executor is not able to distribute the assets until some time in the future.
For example, the will may only allow the children to get the estate when the youngest
turns 18 years old or one of the beneficiaries may be of unsound mind and therefore not
have the capacity to manage their own affairs. If this is the case a testamentary trust will
be established. If the will contains a maintenance clause
the beneficiaries’ future inheritances may be
used for their maintenance. For example, such help may be needed for food, clothing,
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shelter and education. The executor should seek advice from a licensed financial adviser
on an appropriate investment strategy. Using a licensed financial adviser will help to
protect the executor from future claims that the executor’s investment strategy was not
appropriate.
What does the executor have to show to the beneficiaries?
The executor must at all times act in the beneficiaries’ best interests. Therefore it is best
that the beneficiaries be kept fully informed. After the administration of the estate is
complete the beneficiaries should be given a statement showing what came into the estate
and what came out of the estate. If the estate is large or complex (or if the executor feels
more comfortable) an accountant may be able to assist here.
The executor plays a crucial role in the carrying out of the will-maker's wishes through
the will. The executor is given the power at law to carry out these wishes and to do all
that is legally necessary to achieve a due and proper administration of the estate. Careful
consideration must be given to the person who will be appointed as an executor. It is
highly recommended that the will-maker discuss the possible appointment with their
chosen executor prior to preparing the will.
The relationship of an executor to the deceased and the beneficiaries is very much like
that of a trustee. The executor's role is of a very special fiduciary nature, one where the
executor may be held personally liable for any negligence or omitted acts.
It is also usual for the executor to be required to comply with statutory obligations to fall
upon executors in the administration of certain aspects of a will-maker’s estate. From an
income tax perspective, Section 254 of the Income Tax Assessment Act is of great
importance. This section not only requires the executor to prepare and complete a
taxation return for the deceased as near as possible to the type of taxation return that the
deceased would have prepared, but also, the executor is required to withhold from the
estate such amount as is necessary to meet any taxation liabilities of the estate and to the
extent that they do not, the executor is personally liable and may not (subject to the
circumstances) seek the protection of a beneficiary.
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