Taking on the role of a Personal Representative of an Estate can be daunting as you try to navigate the life left behind of your loved one. A Personal Representative can be an Executor (also known as a Trustee) who is appointed pursuant to the terms of a Will or an Administrator who is a person that chooses to take on the role when there is no Will or no Executor.
It is important to note that there is no obligation on an Executor to accept their appointment under a Will and they may choose to renounce their position as Executor should they wish to do so. In the event that an Executor renounces their position then any other named Executor/s in the Will may continue with the administration of the Estate. In the event that there are no other Executor/s named in the Will, then an interested party (such as a beneficiary) may then choose to take on the role as Administrator of the Estate.
The duties of a Personal Representative are legislated and a Personal Representative must comply with their duties and the principles in relation to the administration of Estates.
The first duty of the Personal Representative is to get in all the assets of the Estate. Estate assets cover both the real and personal property of the deceased and it is good practice for the Personal Representative to record a statement of the assets of the Estate which can then be referred to either during the course of the administration of the Estate or in the event that a Court Application is brought against the Estate or against the Personal Representative directly.
Once the assets of the Estate have been collected and, if necessary, turned into liquid assets, the Personal Representative should then attend to the payment of any debts that the deceased had when they passed. As mentioned above, the Personal Representative should also ensure that all liabilities of the Estate are recorded in a statement which can then be referred to by the Personal Representative as required.
When it is required, the Personal Representative also has the duty to obtain a Grant of Probate and/or Letters of Administration (“a Grant”). If an Estate has minimal assets, then it may not be necessary to obtain a Grant particularly where the costs of obtaining that Grant will deplete what little assets an Estate has. It is important that the Personal Representative investigates whether any banks, superannuation funds or insurance funds (with which the deceased held an account) require a Grant as it may be that those organisations will refuse to release funds they hold on behalf of the deceased unless a Grant is obtained by the Estate.
Once the Estate assets have been identified, collected, all debts paid and where no claim has been made on the Estate, the Estate can then be distributed to the beneficiaries pursuant to the terms of the Will or, where there is no rule, pursuant to the rules of intestacy. It is important for a Personal Representative to be aware of their obligations and their personal liability for any dealings with the assets of the Estate.
Any person who seeks to make a claim against an Estate should provide a Notice to the Personal Representative of this potential claim within six months of the deceased’s date of death and should file their claim within nine months of the deceased’s date of death. However, these time limits can be extended at the Court’s discretion. Where a claim is made against an Estate, the Personal Representative will be responsible for representing the Estate.
When a claim is made against the Estate, the Personal Representative should refrain from distributing any part of the Estate to the beneficiaries until such time as the claim is resolved. As such, a Personal Representative who seeks to distribute the Estate in an attempt to minimise the value of the Estate may face legal consequences.
A Personal Representative should act promptly when dealing with the assets and liabilities of the Estate as a Personal Representative who procrastinates or neglects their duties may face legal consequences, particularly, where the neglect/procrastination, causes an asset to decrease in value. Additionally, a Personal Representative may face legal consequences where they fail to adequately perform their duties.
It is important that a Personal Representative is well aware of their duties and any potential downfalls they may face in completing those duties. We recommend that any person considering taking on the role of Personal Representative should seek legal advice so that they can ensure that they are protected against any claims that may be made either against the Estate as a whole or against the Personal Representative directly.
Are you a Personal Representative who is unsure of their role or a beneficiary who is concerned about how a Personal Representative is acting? Then contact us today to discuss your concerns.
Written by Courtney Weekes, Lawyer