Being the appointed executor a deceased estate can be a stressful role. There are several duties that need to be adhered to, to ensure you are administering the estate in accordance with the law. Some of these duties include but are not limited to:
- Notifying beneficiaries under the Will;
- Selling or transferring property;
- Collecting Refundable Accommodation Deposits;
- Closing bank accounts;
- Selling shares;
- Transferring or selling vehicles;
- Pay any outstanding debts;
- Placing an advertisement for creditors;
- Notify the ATO and complete any incomplete tax returns; and
- Distribute the estate in accordance with the Will.
Below we touch on some of the responsibilities an executor may come across.
Deceased’s Real Property
If the deceased owned any real estate, to be able to deal with the property the executor must arrange for the property to be transferred into their name as executor. This is effected by completing a Transmission Application with Landgate, the land title authority in Western Australia. The property will then be transferred into the executors name and from there the executor can either sell the property or transfer it in accordance with the Will.
Refundable Accommodation Deposit (“RAD”)
If the deceased was in an aged care facility, they may have a RAD payable to the estate. Most aged care facilities will not release the RAD, unless there is a grant of probate or a grant of letters of administration (dependent on if the deceased died with a will or not). They will then issue a cheque or make an EFT that is payable into an estate trust account.
If the deceased person held bank accounts, the executor has to contact any bank or financial institutions to notify them of the deceased’s death. The bank will close the deceased’s account, however they will release funds for one thing before closing it, the funeral. Once the executor has obtained a grant of probate, an estate trust account is then opened where all assets of the estate will go into, including the funds of the deceased’s bank account. If the only assets of the estate is a bank account and it is under $50,000 most bank’s will release the money without a grant from the court.
It is important to have a separate estate trust account as it makes it much easier to keep track of assets coming in and you can also pay any estate liabilities from this account. Any outstanding estate liabilities must be paid first before a distribution of the estate can take place. This can also be done by engaging a lawyer and using the lawyer’s trust account.
The Australian Taxation Office (“ATO”) does not know someone has passed away unless they have been notified. It is important for an executor to notify the ATO of a deceased’s death as this will ensure that a final tax return is done for the deceased and any outstanding liabilities can be paid. In some instances, an executor can be held personally liable for any outstanding tax on behalf of the deceased or the estate if tax is not dealt with properly. Even if no tax is payable the ATO should be advised.
However, in some cases, an executor must also lodge a tax return for the estate if there have been assets sold such as an investment property or shares (as CGT is likely to have to be paid) or if there was superannuation that came into the estate or went to a non-dependant. It is important to receive accounting advice before finalising the estate.
Distributing the estate
Once all assets have been collected and placed in a trust account and any estate liabilities have been paid then the executor can distribute the estate in accordance with the Will. It is always recommended that an executor obtains legal advice before distributing an estate to ensure that everything has been completed correctly and there is nothing outstanding to be done.
What can I do if executor isn’t doing their job?
The executor usually has a year, from the deceased’s death to complete all their duties and distribute the estate within a month of the deceased’s death, this is known as the “Executor’s Year”. If the executor does not finalise the estate within a year due to their own wrong doings and not due to reasonable circumstances, then under section 143A of the Administration Act 1903 WA, the beneficiaries can sometimes claim interest to be payable to their legacy. However, it is important to keep in mind that some factors can be out of the executor’s control, such as the sale of a property.
In another instance, if a named executor does not apply for a grant of probate within two months of the death of the testator or the executor cannot be found, beneficiaries under the will can apply for letters of administration with the will annexed.
If you are a beneficiary of an estate and you are concerned that the executor has not properly dealt with estate assets and liabilities, you can apply to the court for a “passing of accounts’. In this process the executor has to provide evidence of all the income, assets, liabilities and expenses of the estate and an accounting process is undertaken to ensure the estate has been properly managed.
If you have been named an executor in someone’s will and require assistance with the administration of the estate, or would like further information on executor duties, contact one of our estate lawyers on (08) 9375 3411.