Last updated 26 September 2018
Two distinct phases occur when finalising a deceased person’s estate. Firstly, the necessary papers must be prepared for the grant of probate or letters of administration if such an application is warranted. Secondly, once this has been completed, the property of the deceased must be collected and distributed in accordance with the terms of the will or the statutory order.
Several problems may arise with regard to executors, and it is usually safest to appoint more than one executor, except in the simplest of cases.
No executor appointed
When no executor is appointed under the will of the deceased, the court will generally grant the administration of the estate to the beneficiaries under the will. There is an order of priority of entitlement to apply provided for in r 603 of the Uniform Civil Procedure Rules 1999 (Qld) (UCP Rules). The person appointed is called an administrator. The administrator will then carry out the terms of the will.
The executor does not wish to act
If a person appointed in a will as an executor does not wish to act, or is not able to act, they do not have to accept that responsibility and can formally renounce the appointment. If a person renounces such appointment (refuses to act), any other executor named under the will can perform all executorial duties. If there is no other executor named, the procedure applicable when no executor has been appointed is adopted.
People who are named as executors who do not wish to act as executor should not do any of the acts normally performed by an executor. For example, they should not pay the deceased’s debts unless they act in a situation of emergency. A person who acts in relation to an estate without intending to take up executorship is said to intermeddle in the estate. Section 54 of the Succession Act 1981 (Qld) (Succession Act) allows an intermeddler to renounce executorship prior to probate of the will being obtained.
The executor is dead
This frequently happens when the will of the testator was made many years before death. If the executor has obtained probate before they die, their executor (or the executor of the last surviving deceased executor) becomes the executor for the deceased (s 47 Succession Act) (see diagram below). The issues raised by the death of an executor can be quite complex and legal advice should be sought.
(click diagram to view fullscreen)
This diagram describes the process when the executor of an estate dies after obtaining a grant of probate. ‘Testator Dies’ so ‘Executor obtains grant of probate’ but then ‘Executor dies’ so the ‘Executor of the deceased executor becomes the executor’.
When probate has not been obtained, the position is the same as if there is no executor appointed. To help avoid this unsatisfactory situation, it is best to appoint more than one executor.
The executor is under 18 years of age
When the sole executor is under 18 years, the practice of the court is to appoint the minor’s guardian (or another person the guardian agrees should be appointed) as administrator. When the minor reaches the age of 18 years, they then take over executorship of the estate.
Duties of personal representatives
The basic duties are to collect the assets of the deceased, attend to the payment of any debts and distribute the estate to the beneficiaries in accordance with the will. The personal representative also has a duty to protect the estate assets and maximise the value of the estate for the benefit of the beneficiaries. The personal representative is accountable to the beneficiaries for their actions in the administration of the estate. The personal representative is required to provide a detailed accounting of the estate’s assets and liabilities upon request by an interested beneficiary. If the personal representative fails to provide adequate information or has not acted diligently, the beneficiary may complain to the Supreme Court (s 52 Succession Act). This is the only right a beneficiary has before distribution. A beneficiary does not own the property until the personal representative distributes the estate of the deceased.
The manner in which the personal representative deals with the assets of the estate depends on the terms of the deceased’s will and the nature of the estate. If specific items are left to beneficiaries, these assets should be given to the appropriate beneficiaries. However, in situations where the estate has insufficient funds available for the payment of debts, items that are the subject of a specific gift to beneficiaries may have to be sold to obtain money for the payment of such debts (s 59 Succession Act).
Payment of executors
The deceased may specifically indicate in the will that executors should be paid for administering the estate. Even if this is not stated in the will, the court may authorise the payment of remuneration or commission to personal representatives for their services (s 68 Succession Act).
Often, a person is appointed an executor and a trustee. There is a difference in function between the two. The executor’s function ends once the estate is distributed to the beneficiaries.
Trustees have continuing duties set out by the terms of the will, such as the support and maintenance of young children or the administration of a sum of money for someone’s benefit as a trustee. Trustees have a high duty to act honestly and in good faith when carrying out duties of trust given to them under a will. The rights and duties of trustees are mainly set out in the Trusts Act 1973 (Qld).
Subject to any conditions stipulated in the grant of letters of administration, every person to whom administration of the estate is granted has the same rights and liabilities and is accountable in the same way as an executor of the deceased (s 50 Succession Act).