Deceased Estate Administration (WA)
When someone passes away in Western Australia, a suitable person must assume legal and practical responsibility for the deceased estate administration. It is not a particularly specialist task, but it can be time consuming and arduous. In WA, the Administration Act 1903 and common law precedent governs the processes of deceased estate administration. This article outlines these processes with particular focus on the role of the personal representative in the administration of a deceased estate.
Deceased Estate Administration: Probate
The first step of deceased estate administration is an application to the Supreme Court of WA for a probate grant. The court can only issue grants for the deceased estates of residents of WA or for a deceased who owns real estate in the jurisdiction.
The applicant will need to select the appropriate grant depending on the particular testamentary circumstances of the deceased when they died. If the deceased has a valid and current will nominating an executor as personal representative, then the executor can apply for a Grant of Probate. In the event that the deceased passed away before making a will, or there is no executor, then a suitable applicant needs to apply for Letters of Administration in order to administer the intestate estate.
Deceased Estate Administration Duties
The primary duty of the personal representative is to protect the assets of the deceased estate. In order to safeguard the estate, the personal representative may have to buy insurance for property, invest funds so they do not lose value, or assume responsibility for business interests. The estate must also be defended in court against any legal claim, challenge or contest.
In addition to this duty, the personal representative must discharge any debts of the estate, including tax liabilities. Once the debts are paid, the estate can be distributed to the rightful beneficiaries according to either the testator’s wishes or intestacy succession laws.
Who Can Administer A Deceased Estate In WA?
The individual who assumes control of the deceased estate administration must be a competent and capable adult. There are two types of personal representative that can administer a deceased estate in WA: an executor or an administrator.
A testator selects an executor from amongst their friends or family or employs a professional such as a solicitor to undertake the role. A testator can name more than one executor in their will, and this is a sensible precaution in case one of the parties cannot accept the role. The Supreme Court of WA allows leave to be reserved so that someone named in a will as executor can make a later application to assume the position.
On the other hand, if multiple parties are named in the will and are willing to accept, then they can share the executorship. A practical approach might be for a testator to task a professional with the statutory requirements of the deceased estate administration, while a family member assumes responsibility for personal effects and keeps the other beneficiaries informed as events progress. When co-executors are appointed, the parties are expected to act with joint authority for more significant estate matters such as the sale of real property and defending the estate against legal contests. Each executor can assume responsibility for the smaller duties of deceased estate administration by themselves.
If the named executor renounces the role of executor or does not apply within two months of the testator’s death, the court may appoint “any person interested” as an administrator to assume the responsibilities of deceased estate administration. An administrator is also legally appointed when a deceased dies intestate (without leaving a will that names an executor).
A testator may also arrange a trust in their will to safeguard an inheritance for a minor or a legally unfit adult. In that case, a trustee must be appointed to administer the trust, in a role that may outlast the usual process of deceased estate administration. A professional, including the Public Trustee, can assume this role. The responsibilities of a trustee in WA are outlined in the Trustees Act 1962.
Breaches of Duty In Deceased Estate Administration
If the personal representative fails to discharge their duties with due care then they can be held legally responsible for any damage or loss incurred by the estate. An interested party can petition the court to have an executor or administrator removed for breach of duty and the court will appoint a replacement administrator to manage the deceased estate administration.
Expenses And Remuneration For Deceased Estate Administration
The personal representative can reimburse themselves for any reasonable expenses (such as travel costs) incurred from discharging the duties of the role.
Remuneration is treated differently to expenses. A professional executor or administrator is paid to undertake the deceased estate administration, but a non-professional is typically not engaged under the same conditions. There is provision for the court to order that the executor or administrator receive compensation from the estate in the form of an executor’s commission. This commission can only total up to 5% of the gross value of the deceased estate, depending upon several factors, particularly the complexity of the task. The likelihood of securing a commission may increase if the personal representative keeps detailed records of how they have carried out the deceased estate administration, noting the time that was taken over the task, the duration of the administration and the total value of the estate. The court will also consider whether the representative undertook the bulk of the work personally and whether the management benefited the estate and the beneficiaries. The team at Armstrong Legal can help draft a successful application for an executor’s commission.
The wills and estates team at Armstrong Legal has extensive experience with all aspects of deceased estate administration. If you require assistance on any legal matter please call our office on 1300 038 223 or contact us to make an appointment.