Administration and Probate of Deceased Estate
What happens if you are the Executor of a Will?
If you are the Executor of a Will, you will be responsible for the administration and distribution of the deceased’s estate in accordance with the deceased’s Last Will and Testament.
It is a very confusing time for Executors as from 1 November 2017, there was new legislation that came into force in Victoria that governs Estates when the deceased’s Last Will and Testament was prepared on or after 1 November 2017.
For all Estates, when the last Will and Testament of the deceased was prepared before 1 November 2017, the older legislation applies to the distribution of the Estate.
This means that there are two different laws running concurrently and it is vital that the Executor obtains legal advice to assist them and ensure that the correct Act is being applied to the distribution of the Estate.
In addition to the Administration and Probate Act 1958 (Vic) and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 there are numerous legal obligations imposed of the Executor, including but not limited to the following:
- Provision of the Last Will and Testament of the deceased to the named beneficiaries;
- Organisation of the deceased’s funeral;
- The real property of the deceased rests with the Executor which means you need to ensure it is insured, maintained and kept in the same condition;
- Make an oath to the Supreme Court as to the inventory and accounts of the deceased’s Estate;
- Distribution of the Estate in a timely manner (usually 12 months from the grant of Probate);
- Attend to payment of the deceased’s debts and liabilities from the Estate;
- Attending to filing a tax return on behalf of the Estate and seeking advice as to the applicability of capital gains tax;
- In most cases the sale of the deceased’s assets which includes hiring a real estate agent and preparing the property/properties for sale; and
- In some cases investment of the deceased’s assets for infant beneficiaries.
The role of an Executor can be very time consuming, especially when there is a large estate with numerous assets. Most people are unaware that an Executor can be entitled at law to a commission or fee.
If you are an Executor of a Will that was made before 1 November 2017, the Administration and Probate Act 1958 applies to you. Section 65 states that the Executor can seek a commission not exceeding 5% for the “pains and trouble” of administering the deceased’s Estate as is “just and reasonable.”
It is vital that the Executor seeks advice as to what is “just and reasonable,” namely the recommended percentage for the works undertaken by the Executor and the process required to obtain a commission. There are several relevant cases that are applicable to claiming an Executor’s commission that need to be considered.
If you are an Executor of a Will that was made on or after 1 November 2017, the new legislation, Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 amends the existing law in relation to Executors charging fees and commissions for Wills made on or after 1 November 2017.
If the Will has a remuneration clause for the Executor, the Executor is not entitled to payment unless:
the testator gave written informed consent to the inclusion of the remuneration clause; and
that written informed consent was given by the testator before the Will was executed.
If you would like assistance regarding probate or administration of an Estate, or need further information, please fill in the form below and one of our Estate Lawyers will be in contact with you shortly, alternatively you can call us on 03 9571 7444.
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