Administering the Estate
As the legal personal representative of the estate, the executor or administrator must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the will.
The will should be examined to ensure the distribution is in accordance with its provisions. Understanding the correct interpretation of a will’s terms can be confusing, and Douglas Cheveralls Lawyers may assist with explaining the proper construction of the will.
Prior to distributing assets, the executor or administrator will need to be certain that:
- the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
- funds are retained in the estate for contingent expenses such as taxes and other fees;
- all beneficiaries have been identified and provision (if relevant) is made for holding a minor beneficiary’s share in trust;
- the estate is not distributed until all creditors are identified and the requisite timeframe has expired for an eligible person to make a family provision claim;
- a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries; and
- beneficiaries who are receiving insurable assets have arranged insurance cover in their own names before cancelling existing policies.
The executor and beneficiaries should receive appropriate legal or financial advice when transferring or receiving assets to ensure that stamp duty, capital gains, land tax and other taxes are considered.
Executors should also be mindful of their duty to protect and preserve estate assets and to ensure that appropriate insurance, where relevant, is in place.
Douglas Cheveralls Lawyers may provide advice specific to your circumstances about particular issues that arise, or the administration of the estate as a whole.
Protecting an Executor or Administrator
Executors may be personally liable for losses sustained by beneficiaries through negligence or delay in administering an estate, but must also ensure that all claims are considered before distributing estate assets.
The executor is not required to advertise an intention to apply for probate or to distribute an estate however, in doing so, may protect themself from any claims by creditors of the estate.
Exemption from liability however does not apply to a family provision claim whereby eligible applicants generally have six months from the date of the grant of probate to apply. Accordingly, it is prudent for executors to wait for six months from the grant before distributing the estate.
Douglas Cheveralls Lawyers may explain the relevant timeframes and the most appropriate means of protecting an executor from liability.