Deceased Estate Administration (ACT)
When a person dies in the Australian Capital Territory, someone must take on responsibility for the deceased estate administration. The obligations of deceased estate administration are established by the Administration and Probate Act 1929 and confirmed by common law. This article examines the procedures of deceased estate administration in ACT with particular attention to the role of the executor and administrator.
What is Deceased Estate Administration?
In the ACT, executors and administrators act as personal representative for the deceased in all matters related to estate administration. The main distinction between the two types of representatives is the manner of appointment: a testator nominates an executor in their will, whilst the ACT Supreme Court appoints an administrator when the deceased is intestate or when the named executor cannot undertake the estate administration. The other difference between the two representatives is that the executor abides by the wishes of the testator, and the administrator acts according to intestacy and succession laws.
Who Can Administer a Deceased Estate?
The testator can employ a professional, such as a solicitor or Public Trustee and Guardian, to act as executor. In fact, it is more typical for a testator to appoint a family member or personal friend to manage the deceased estate administration. If things go as planned, the appointed executor will be ready to act as soon as the testator passes away, but there are multiple reasons why an executor may be unavailable when they are needed. The named person may not be old enough when the testator dies, or they may have already passed away themselves. It is also likely that the circumstances of the executor might change over the years so that they are no longer in a position to accept the responsibility. In the event that the executor cannot act, they can appoint the Public Trustee to act in their stead or simply renounce the role altogether. When an appointed executor signs a renouncement, the Supreme Court of the ACT will seek applications from eligible people to act as the administrator for the deceased estate.
Deceased Estate Administration: Probate
Deceased estate administration starts with an application for a Grant of Probate from the ACT Supreme Court. There are distinct types of grants that are needed in different circumstances. For instance, if the deceased had a valid will that appointed an executor, then the application should be for a Grant of Probate. If the deceased died without drafting a will, the correct grant in the ACT is a Letter of Administration – No Will. Finally, if the executor is unavailable, then the correct grant is a Letter of Administration With Will.
In the ACT, an executor needs to wait for at least half a year before distributing the deceased’s assets, to provide an opportunity for anyone to make a claim on the estate. There may be an even longer wait if there are tax complications or the estate is legally contested or challenged.
After applying for a Grant of Probate, the next step is to gather together a list of the debts and assets of the deceased. Once the assets have been valued, the executor or administrator can begin to discharge the debts according to the instructions of the testator and/or legislative requirements. The residual estate is then distributed to the rightful beneficiaries.
The main ethos of deceased estate administration is that the executor or administrator is obliged to protect the estate against any loss or damage. This duty of protection might take the form of arranging storage of valuables, purchasing insurance on the property, or even taking control of business interests to preserve the value of an asset. The other way that a personal representative defends an estate is against legal challenges or contests in court. These responsibilities are serious and sometimes onerous, but if the executor or administrator fails to discharge their duties conscientiously then an interested party can move to have the representative removed and replaced.
Who Gets Paid For Deceased Estate Administration in the ACT?
A testator must pay for a professional to manage the deceased estate administration in the ACT. They may also choose to make a provision in their will for a friend or family member to act as a personal representative, but there is no obligation to pay someone who accepts the position as a favour or to protect their own interests as a beneficiary. There is provision, however, under Section 70 of the Administration and Probate Act 1929, for an executor to apply for a commission for administering the estate, in an amount that is considered “just” in the circumstances.
There are instances when a testator needs to appoint a trustee as well as an executor in their will. A trustee is required when the will makes provision for a trust for a minor child or legally unfit adult. The role of trustee lasts for as long as the trust endures, so this appointee could be involved in the deceased estate administration long after the duties of the personal representative have been concluded. The legislation that governs the responsibilities of the trustee is the Trustee Act 1925.
The Armstrong Legal wills and estates team can provide guidance for anyone involved in deceased estate administration in the ACT. Please contact our knowledgeable and friendly team on 1300 038 223 or send through a message to make an appointment.