This article was prepared for Irwin Legal with the assistance of Mr Sami Abbas.
As an executor, your pivotal role involves conscientiously administering the deceased estate for the benefit of the beneficiaries. When undertaking the administration process, it is paramount to meticulously navigate the necessary steps to ensure the proper and thorough completion of an estate administration.
The executor's duties encompass a range of responsibilities, including, but not limited to:
- Organising the burial of the deceased;
- Initiating the probate process (by applying to the Court for a grant of Probate or Letters of Administration);
- Administering the estate in adherence to legal requirements;
- Settling the debts of the estate; and
- Ultimately, distributing the remaining assets to the beneficiaries.[1]
1. Locate and Review the Will
The foremost responsibility of an executor commences with the identification and secure storage of the deceased's will. If a will exists, the executor should meticulously locate and safeguard it before initiating the probate application process to validate its authenticity.
In cases where no will exists, the executor should proceed to apply for "Letters of Administration".
2. Inventory Compilation
Commence the estate administration process by meticulously compiling an exhaustive list encompassing every asset and item owned by the deceased, and any outstanding payments or entitlements to assets. This comprehensive inventory should encompass the entire estate spectrum, from:
- Cash and business interests;
- Personal effects;
- Securities (including shares);
- Real estate holdings;
- Potential property sales; and
- A thorough account of debts due and debts owing.
It is imperative to assign accurate valuations to each component of the estate. You should also maintain a detailed record of these valuations. By methodically cataloguing the diverse elements, you lay the groundwork for a transparent and organised estate administration, ensuring a comprehensive understanding of the deceased's financial landscape.
3. Probate Application
To commence the probate process in Western Australia, it is imperative to initiate the procedure by submitting an application to the Supreme Court.[2] The resulting application for probate is governed by the Administration Act 1903 (WA). It is the legal process by which the validity of a particular will is proven to the Supreme Court of Western Australia. The Grant of Probate, a document issued by the Supreme Court, serves as confirmation of an executor's authority to manage the affairs of the deceased. The court issues the Grant of Probate after ensuring specific criteria are met, including verifying that the deceased is the author of the will, confirming the executor's designation, validating the correct signing and witnessing of the will, ensuring the non-revocation of the will by the deceased before their passing, and verifying the executor's sworn statement regarding the value of assets and liabilities as of the date of death. Applications for Probate in Western Australia can be made to the Supreme Court at any time after 14 days from the date of the deceased's passing, and this application may be undertaken by a solicitor, executor, or an individual entitled to the administration of the estate.
4. Fee Payment
Fulfil the necessary financial obligations by paying the required fees when lodging the probate application forms and documents.
5. Tax Obligations
Ensure your completion and submission of the deceased estate's annual tax return. Settle any applicable income tax liabilities from the assets of the deceased estate.[3] You may obtain the assistance of a tax accountant for that purpose (whose services are properly payable from the income of the deceased estate).
6. Estate Distribution
Your ultimate aim is to complete the distribution of the estate in accordance with the terms specified in the will. In doing so, you must adhere to the deceased's intentions for the beneficiaries, as expressed in the will.
If you are in any doubt about the meaning of words or phrases used in the will, you should obtain legal advice (preferably from a lawyer who practises in that particular area of law).
By meticulously navigating through these steps, an executor can fulfil their fiduciary duties, manage the deceased estate efficiently, and distribute the interests of the beneficiaries (as outlined in the will).
[1] Helpful information and resources about the duties of executors can be found on: ‘Duties of executors’, Legal Aid WA (Web Page) < https://www.legalaid.wa.gov.au/find-legal-answers/managing-your-affairs/wills-and-estates/duties-executors>.
[2] Administration Act 1903 (WA) s6.
[3] For more information on tax obligations please see, ‘Deceased Estates’ Australian Taxation Office (Web Page) <https://www.ato.gov.au/Individuals/Deceased-estates/>.
The next part of the series will discuss some circumstances in which a will can be rectified.
Disclaimer: The information provided here is for educational purposes only and should not be considered as legal advice. If you are named as an executor or administrator of a deceased estate, Irwin Legal can assist you in administering the estate. 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, and seeking professional advice for your situation is important.