YOUR DUTIES AS EXECUTOR

Transcription

1 Gibney & Gunsn LAWYERS New Suth Wales & Victria YOUR DUTIES AS EXECUTOR The funeral Yu may be required t make the funeral arrangements. In mst instances, clse family r friends attend t funeral arrangements withut reference t the executr, but in sme instances it may be necessary fr yu t make decisins in cnnectin with the funeral. It is desirable that the will be lcated as sn as pssible after death, as sme peple d express wishes in relatin t their wn funeral arrangements. Disputes are rare in relatin t funeral arrangements. If disputes d arise, the decisin f the executr prevails. The bank will likely release a cheque frm the deceased persn s bank accunt payable t the funeral directr. If yu deliver the tax invice fr the funeral t this ffice, we will liaise with the deceased persn s bank. If yu have paid the funeral accunt yurself, yu are entitled t be reimbursed frm estate funds upn presentatin f a receipt. In sme cases, there are insufficient funds in the bank t cver the funeral directr s tax invice. Funeral directrs are usually willing t allw payment f funeral expenses t be deferred until estate funds are available (usually when the deceased persn s huse is sld), althugh sme charge interest n the utstanding balance. The cst f a memrial plaque r tmbstne is nt regarded as a funeral expense and cannt be met ut f the estate f the deceased persn, unless specific prvisin had been made by that persn. A grant f prbate Other than in very small estates, the executr must apply t the Supreme Curt fr a grant f prbate. Wills and estates are under the supervisin f the Supreme Curt. It s necessary fr the will, with supprting dcuments, t be submitted t the Supreme Curt fr apprval. This is the prcess knwn as applicatin fr a grant f prbate. The grant f prbate by the Supreme Curt cnfirms the validity f the will and the appintment f the executr. The grant f prbate entitles the executr t deal with the estate assets.

2 Gibney & Gunsn Yur Duties As Executr 2 The prcess f btaining a grant f prbate invlves: First, placement f an electrnic advertisement in prescribed terms. Secnd, preparatin f the applicatin dcuments, including an affidavit f executr, which yu will swear. By this affidavit, yu will infrm the Curt as t the death f the deceased, as t the deceased s will, and as t the assets and liabilities f the deceased. Third, yu will swear the prbate applicatin dcuments (these are required t be swrn n ath). Furth, we will ldge the applicatin fr grant f prbate with the Supreme Curt, tgether with the riginal will and the Curt s filing fee. After ldgement, the Curt will usually grant prbate within abut ten (10) days, and will send the riginal prbate dcument t us. We will infrm yu nce prbate has been granted, and will send yu a cpy f the prbate (which is an fficial dcument f the Supreme Curt, bearing the Curt s seal). T lcate and secure the estate f the deceased persn The executr (usually with the assistance f the slicitr, and smetimes the accuntant t the estate) must identify, cllect, and preserve the assets f the estate. Such assets cmmnly include: Mney in hand, at the huse, r at the place f business Mney in banks r ther financial institutins. The executr shuld lcate current bank passbks, investment accunt bks, cheque bks, bank statements, certificates f interest bearing term depsit, etc. Sharehldings. Issuer/hlder statements, dividend statements, etc. will assist in identifying sharehldings Interests in partnerships. There will rdinarily be a partnership agreement. The deceased persn s accuntant wuld usually have a cpy. Partnership accunts will be able t be btained frm the accuntant t the partnership and these will be useful in establishing the value f the partnership interest Other investments such as managed funds, prperty trusts, etc. These will usually be evidenced by hlder statements, peridic statements cncerning earnings, etc. Any debts wed t the deceased. Mnies lent by the deceased persn are an asset f the estate. Such lans may be verbal r evidenced in writing (acknwledgment f debt dcuments, lan dcuments, mrtgage dcuments, peridic interest payments, etc.) Mtr vehicles. The current certificate f registratin f mtr vehicles ught be lcated

3 Gibney & Gunsn Yur Duties As Executr 3 Real estate. Details f real estate hldings will usually be well knwn t the executr. Title searches against the name f the deceased can be perfrmed. These may reveal unknwn landhldings Life insurance plicies. The plicy dcuments will rdinarily be at the deceased persn s residence Husehld cntents. An inventry shuld be prepared In the case f the death f a farmer, the financial statements fr the farm will assist in establishing such things as plant and equipment, livestck hldings, and credits with rural rganisatins such as grain bards and cperatives. Certain assets and financial resurces d nt frm part f the estate. Cmmn examples are: Prperty wned as jint tenants. Mst matrimnial hmes are wned n this basis. The share f the deceased persn will pass autmatically t the surviving wner withut reference t the will. The same principle applies t jintly wned bank accunts Superannuatin. The deceased persn s superannuatin accunts will pass t the nminated beneficiaries, r as determined by the trustee, after cnsideratin f the circumstances f the persns clse t the deceased persn, including their dependency upn the deceased persn Sme assets held within family trusts and family cmpanies. The deceased persn s debts and liabilities It is the respnsibility f the executr (usually with the assistance f the slicitr, and smetimes the accuntant t the estate) t ascertain the deceased s debts. Such debts may include: Funeral expenses and ther expenses assciated with the deceased persn s death Outstanding medical accunts, pharmaceutical accunts, hspital accunts, and ambulance accunts Debts t the Australian Taxatin Office Lans due under mrtgages Credit card debts Mnies wed t ther persns. T distribute the residue f the estate after payment f debts and expenses f administratin t the beneficiaries The beneficiaries are the persns entitled t the net estate. Beneficiaries shuld receive their entitlements at the earliest pssible time. Beneficiaries are entitled t a cpy f the will. It is usually apprpriate, and

4 Gibney & Gunsn Yur Duties As Executr 4 gd practice, fr the executr r the lawyers fr the estate t write t the beneficiaries t infrm them that they are beneficiaries. This shuld be attended t at the earliest time. The executr must nt delay in the perfrmance f his r her duties. Generally, the executr shuld be in a psitin t cmplete the estate nt lng after 12 mnths frm the date f death. In New Suth Wales, family members and ther persns in clse relatinships with the deceased may bring family prvisin claims, and they have 6 mnths in which t d s. The executr shuld nt cmplete the estate in under 6 mnths due t the risk f claims. In Victria, similar claims can be made, but the time limit is 12 mnths. The final phase f the estate distributin t the beneficiaries can be quite cmplex and may invlve the cmpletin f a number f legal dcuments, including land transfers, share transfers, preparatin f tax returns, etc. The final duty f the executr is t prvide a full and final accunting t the beneficiaries (final estate accunts). This is attended t by the lawyers t the estate, ften in cnjunctin with accuntants retained t attend t estate tax returns. Tax There are n gift taxes, death duties, prbate duties and taxes, and inheritances duties and taxes in Australia. All these taxes and duties have been ablished. The estate may be liable fr tax fr a number f reasns, including: unpaid tax wed by the deceased utstanding tax returns f the deceased resulting in assessments the receipt by the estate f incme such as rent, interest, dividends capital gains tax due t assets sld by the executrs resulting in capital gains (there will be n capital gains tax n the sale f the deceased s main residence if it is sld and the sale cmpletes within 2 years f date f death). If the beneficiaries receive prperty, in mst cases, there will be n capital gains tax r stamp duty payable by the estate r beneficiaries. Hwever, the beneficiaries may be liable fr capital gains tax if they dispse f the inherited prperty at a later date fr prfit. Other duties Yu shuld nt mingle yur wn affairs with the affairs f the estate. The executr is required keep accunts and receipts in relatin t mnies cming int and ut f the estate. The slicitr will ften have custdy f the tax invices, receipts, etc.

5 Gibney & Gunsn Yur Duties As Executr 5 It is the duty f the executr t insure prperty apprpriately and t make sure insurances are up t date. There may be instances where it is impssible t insure. If a building is vacant, many insurers will refuse t ffer insurance. What if there is n will? If the deceased leaves assets, but n will, a persn clse t the deceased (spuse r relative) will apply t the Supreme Curt fr a grant f Letters f Administratin. The Curt s grant f Letters enables the administratr t administer the estate, in the same way that an executr des. Charges, expenses, and legal csts The Supreme Curt charges a filing fee fr prbate applicatins. The fee depends n the value f the estate. Supreme Curt prbate filing fees change frm time t time, and are accessible n the internet. There is a fee t advertise (as is required) the applicatin fr grant f prbate. Depending n the estate, there may be ther expenses such as title search fees, registratin fees n land transfers, transfer fees n vehicle transfers f wnership, brker s cmmissin n sale f shares, etc. The gvernment sets the fees t be charged by slicitrs in cnnectin with prbate applicatins. The fee allwed t be charged depends n the value f the estate. Fr New Suth Wales prbate applicatins, refer Schedule 4 f the Legal Prfessin Regulatin 2005 (Obtaining first time grant f prbate r resealing f prbate). Fr Victria, the fees are prescribed by the Supreme Curt (Administratin and Prbate) Rules 2004, Order 9. We will infrm yu f the permitted fee (GST additinal) when we knw the grss value f the estate. Separate t the applicatin fr grant f prbate, fees are charged by slicitrs fr the administratin f the estate (calling in f assets, dealing with assets, dispsing f assets, paying debts, addressing ther liabilities, addressing tax, distributin t beneficiaries, reprt/final accunting t beneficiaries, etc.). The fees n administratin are determined by ur hurly rate, which changes frm time t time. We are required t disclse in relatin t fees. We will prvide yu with csts disclsure dcuments. We invite yu t cntact us with any queries yu may have in relatin t legal csts, charges, and expenses. We are happy t answer any questins yu might have. In mst estates, funds d nt becme available until prceeds f bank accunts are released by banks, real estate is sld, aged care accmmdatin bnds are released, etc. Slicitrs assist the executr in this regard by waiting fr payment until funds becme available. Is the executr entitled t payment? The Supreme Curt may authrise the payment f cmmissin t the executr fr his r her services. Executrs wishing t receive a cmmissin shuld keep extensive recrds f all f their wrk in cnnectin with the estate in rder t substantiate the claim.

6 Gibney & Gunsn Yur Duties As Executr 6 If the executr and all beneficiaries agree t the payment f executr s cmmissin, then applicatin t the Curt is nt necessary. If there is disagreement in relatin t executr s cmmissin, it is necessary t apply t the Curt. In mst cases, the Curt will allw cmmissin. When the Curt cnsiders an applicatin f an executr fr payment f cmmissin, it takes int accunt the wrk dne, the time invlved, and the level f respnsibility. The maximum rate f 5% is almst never awarded and is reserved fr the mst cmplicated and time-cnsuming estates. In ur experience, cmmissin is usually allwed in the vicinity f 2% t 2.5%. If there has been delay, breach f trust, dishnesty, r negligence, the Curt may refuse t allw cmmissin. Lavingtn 2/346 Griffith Rad (PO Bx 594), Lavingtn, NSW 2641 DX 5835, Albury, NSW Telephne: (02) Facsimile: (02) Wdnga 18 Jarrah Street, Wdnga, VIC 3690 Melburne 74/299 Queen Street, Melburne, VIC 3000 GIBNEY & GUNSON Lawyers New Suth Wales & Victria mail@gibneygunsn.cm.au