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11 Sep PROBATE & ADMINISTRATION

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When a loved one dies, there is often an “estate” comprising property, assets and unfortunately in some cases, debts that need to be managed and finalised; this is the role of the Executor or Court appointed Administrator.

The Executor or Administrator will seek a grant of representation, which is a legal document issued by the Supreme Court, authorising the Executor or Administrator to handle the assets of the deceased and carry out their duties.

Frequently Asked Questions

What is an Executor or Administrator?
  • Executor: the person/s appointed under the last Will of the deceased to manage the estate affairs after the deceased’s death.
  • Administrator: the term administrator refers to a person appointed by a Court to administer the estate of a deceased who did not have a Will. The Court will usually appoint the person with the greatest interest or entitlement in the estate to act as the administrator. The administrator enjoys similar powers to those as an Executor of a Will.
What are the duties of the Executor or Administrator?

The duties of an Executor or Administrator are very similar.

The duties commence from the date of death and include, but are not limited to:

  • Arranging the funeral
  • Applying for a Death Certificate
  • Applying for a grant of Representation
  • Notifying the beneficiaries of the estate
  • Handling the daily tasks associated with the estate
  • Calling in, selling or converting the assets (depending on the Will)
  • Arranging the payment of reasonable expenses
  • Insuring the assets
  • Defending and upholding the deceased’s wishes under the Will
  • Acting in the best interests of the beneficiaries of the estate Holding the assets on trust until the expiration of the limitation date for a family provision claim is over
What are the types of grants

There are usually three types of grants a Court will issue.

  • Probate: a grant of Probate is issued to the Executor/s named in the last valid Will of the deceased.
  • Letters of Administration with the Will annexed: a grant of Letters of Administration with the Will annexed is usually made where the deceased has left a valid Will, but either the nominated Executor cannot or refuses to apply for a grant of Probate. The grant will generally be made to the person or beneficiary who has the greatest interest under the Will.
  • Letters of Administration: a grant of Letters of Administration is usually made in circumstances where the deceased died without making a valid Will. The grant is usually issued to the closest next of kin of the deceased i.e. a spouse or child.
Do I need a grant of Representation?

If the deceased died with assets that were not jointly owned and the value of the assets was somewhat significant, then a grant is usually required. Most banking and financial institutions will not liaise with, or release funds of the deceased, to a person who does not have the legal authority to handle the deceased’s estate.

There are some instances such as when the estate is of a relatively small value, where a grant may not be required. This will depend on the institution and inquiries should be made of each to determine whether the grant is required.

What are my rights as a beneficiary?

A beneficiary is someone who is appointed either under a Will or under the statutory scheme of intestacy to benefit in the deceased’s estate. Until the authorised Executor/Administrator has finalised the administration and is ready to distribute the estate, beneficiaries generally have limited rights.

The assets of the deceased confer to the Executor/Administrator until the final distribution is complete. Therefore beneficiaries will generally have no say in the administration.

If a beneficiary has a concern, then at the end of the administration they can request for the Executor/Administrator to furnish them with a complete accounting of the administration of the estate. If an Executor/ Administrator refuses to co-operate, the beneficiary can apply to the Supreme Court for assistance or for orders to produce the accounts. This enables the beneficiary to closely scrutinise or review the administration.

A situation may arise where an Executor/Administrator may abuse their authority, act negligently or dishonestly, or engage in fraudulent transactions. If any of these situations arise, a beneficiary may be able to make an application to the Supreme Court to have the Executor/Administrator removed or prevented from continuing to administer the estate.

Revocation of a grant of Representation

In some instances where a grant of Representation has been irregularly or unlawfully obtained, the grant itself may be revoked on application to the Supreme Court. Some of the reasons why a revocation may be required include, but are not limited to:

  • Discovery of a later Will
  • The last Will declared invalid
  • Obtaining the grant of Representation fraudulently
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