Deceased Estate Administration (NSW)
When someone passes away in the state of New South Wales, a personal representative must take legal responsibility for the deceased estate administration. The duties of deceased estate administration are outlined in the Probate and Administration Act 1898 and affirmed by common law. This article outlines the process of deceased estate administration in NSW with a particular focus on the duties of the personal representative.
Deceased Estate Administration in New South Wales
In New South Wales, there are two types of personal representative responsible for deceased estate administration: administrators and executors. The testator names an executor to undertake the job, and enact the wishes expressed in the will. Alternatively, if the deceased is intestate, or the nominated executors are unavailable, the Supreme Court of New South Wales can appoint an administrator to manage the deceased estate. The role of these two personal representatives is similar, except the executor acts according to the wishes of the testator, and the administrator is bound to act according to succession and intestacy laws.
Who Can Administer a Deceased Estate?
The person that the testator selects as executor can be either a professional, such as a Public Trustee or solicitor, or a personal friend or family member. In a straightforward scenario, the named executor would step in when the testator passes away to begin the deceased estate administration. However, things are not always straightforward, and sometimes the named executor is not able to act when they are needed. If the testator dies unexpectedly the named executor may not be of legal age to administer the estate, or if the will has not been updated in some time, then the named executor may have already passed away. There might also be changes of circumstances that prevent the named executor from performing the role. In this case, the executor should ask the public trustee to assume responsibility on their behalf or renounce the role entirely. If the executor renounces, the Supreme Court will appoint an administrator to take over the deceased estate administration.
Deceased Estate Administration in NSW: Probate
The first step in deceased estate administration is an application for a Grant of Probate from the Supreme Court of New South Wales. The type of grant is dependent on the particular circumstances of the testator. If they had a valid will that nominated an executor, then the executor applies for a Grant of Probate. If the deceased died intestate, then a suitable person will apply for Letters of Administration.
In NSW, an executor must wait for at least six months before distributing the estate’s assets to the beneficiaries to allow time for claimants to come forward. If the estate is challenged or contested or there are taxation issues, then probate may be delayed for up to a year or even longer.
Deceased Estate Administration in NSW: Duties
One of the first duties of deceased estate administration is to list and value the estate’s assets and account for any liabilities. The executor or administrator must discharge the estate’s debts in accordance with the testator’s instructions and legislative guidelines, including any outstanding taxation liabilities. After the debts are paid the residual estate must be distributed to the designated beneficiaries.
The main precept of deceased estate administration is that the personal representative must protect the estate from any damage until the assets can be distributed to the beneficiaries. This protection may include taking out insurance on the property, carefully storing valuables, and even taking over the management of a testator’s business so that it continues to trade. Protecting an estate may also take the form of defending the estate against a contest or challenge in court. If the personal representative does not fulfil their duties conscientiously then the court may remove them from the role.
Deceased Estate Administration in NSW: Who Gets Paid?
A professional who is acting as an executor or administrator is paid to manage the deceased estate administration. When a family member acts in the role, they typically do so because they are acting in their own interests as a beneficiary of the estate.
If someone other than a beneficiary performs the role of executor as a favour, the testator may choose to leave a token of appreciation for the executor in the will. The beneficiaries might also wish to reward the executor for his or her contribution. Alternatively, if the task was particularly time-consuming, the personal representative may apply to the Supreme Court for a commission, which may total up to 2% of the value of the assets.
Deceased Estate Administration in NSW: Trustee
Sometimes a testator needs to make provision in their will for a trust to safeguard the inheritance of a child or adult who is not legally in charge of their affairs. In these circumstances, the testator must appoint a trustee to manage the trust, a role that often lasts longer than the role of the executor or administrator. The duties of the trustee in relation to deceased estate administration in New South Wales are outlined in the Trustee Act 1925.