This article was prepared for Irwin Legal with the assistance of Mr Sami Abbas.
I. INTRODUCTION
The loss of a loved one is an indescribable and emotionally taxing experience, marked by grief and heartache. In the midst of this already challenging period, the responsibility of being named the executor of a will can add an additional layer of complexity to an already stressful situation. As the executor, you may find yourself navigating through a spectrum of emotions, while grappling with the practical aspects of settling the deceased's estate.
Administrative tasks may seem overwhelming during the grieving process. Knowing where to begin or whom to contact is not easy. This blog series will aim to provide a guiding light through the intricate landscape of deceased estates, offering valuable insights into such matters as:
- the initial steps an executor should take;
- the circumstances under which a will can be rectified;
- the procedural aspects for beneficiaries seeking court approval of final accounts; and
- the nuance of factors considered by the court in the assessment of an inheritance.
By addressing these critical aspects, we hope to assist you in understanding the crucial elements involved in estate administration. The blogs should provide a roadmap for a smoother and more informed process during a challenging time.
II. WHAT IS A DECEASED ESTATE?
To navigate the intricate landscape of deceased estates, it is essential to establish a clear legal understanding of the key terms. A deceased estate refers to the collective property and assets of an individual who has passed away, including real estate, cars and cash.
This estate is held in trust, transitioning from the person's death until the final transfer of assets to the designated beneficiaries. It is crucial to recognise that during this interim period, the deceased estate operates as a trust. Unlike a natural person or a company, a trust does not possess its own legal entity. Instead, it constitutes a relationship involving a trustee and the beneficiaries. In most cases, the individual designated to oversee a deceased estate is referred to in the will, and is commonly referred to as the executor.
Throughout the probate process, the executor or executors are tasked with:
- gathering all probate assets of the deceased;
- settling outstanding debts with creditors; and
- ensuring the orderly distribution of the remaining assets to the specified beneficiaries.
In Western Australia, the Administration Act 1903 (WA) serves as the foundational legal framework dictating the requisites for the administration of a deceased estate. This legislation delineates the specific legal procedures and obligations that must be followed by individuals responsible for overseeing the affairs of a deceased person's estate. We will go through the key parties in the next section.
III. KEY PARTIES IN A DECEASED ESTATE
By understanding these fundamental definitions and roles, one can better appreciate the intricacies of a deceased estate, ensuring clarity in the relationships between the executor, beneficiaries, and the trust that temporarily protects the deceased's valuable assets.
Executor
The executor serves as the individual entrusted with holding the deceased estate in trust, essentially acting as the trustee for the deceased estate. In this role, the executor assumes the critical responsibility of administering the deceased estate with the utmost diligence and in the best interests of the beneficiaries. A woman who is an executor is sometimes called an executrix. An executor may be appointed solely or with others.
Beneficiaries
Beneficiaries are the individuals entitled to a share in the deceased estate. The individuals or groups (e.g. "all my children") are typically specified in the will, if one exists. Beneficiaries inherit the assets of the estate according to the wishes of the deceased. In cases where no will exists, beneficiaries are identified by reference to the Administration Act 1903 (WA). As a result, the deceased person's next of kin may inherit through the process of intestacy.
Administrator
In Australia, an administrator is the title given to the personal representative appointed to oversee the affairs of a deceased person in instances where:
- no will exists;
- the will does not designate an executor; or
- the appointed executor is unable or unwilling to fulfil their role.
In such cases, the relevant State or Territory Supreme Court assumes the responsibility of appointing the administrator. If there is no surviving spouse, including a de facto partner or identifiable next of kin, or if the Court deems them unsuitable for the role, the Court retains the authority to appoint any qualified person, potentially including a public trustee, as the administrator.
To initiate the administration of the deceased's estate, a formal application is lodged at the Supreme Court for the grant of letters of administration. In cases where a will exists, but lacks an executor capable or willing to act, the administrator may seek letters of administration with the will annexed in order to carry out the necessary duties.
The next part of the series will discuss the general steps that an executor or administrator should take to administer a deceased estate.
Disclaimer: The information provided here is for educational purposes only and should not be considered as legal advice. We recommend contacting us on (08) 9221 8337 or at admin@aristei.com.au if you wish to speak confidentially about your situation and seek legal assistance. Legal matters can vary based on laws and regulations. Seeking professional advice for your particular circumstances is important.