When Should Legal Executor Advice be Sought?

When someone dies, the Executor they appointed to administer the Estate they leave behind is tasked to implement their wishes stated in their Will. Let’s look at a few reasons why you should seek legal executor advice at the right time.

Overview

In administering the Estate, some of the primary duties of the Executor include:

  • Locating the original Will
  • Applying for Grant of Probate from the Supreme Court
  • Notifying the Beneficiaries named in the Will
  • Making funeral arrangements
  • Managing the Estate
  • Collecting the assets of the Deceased Estate
  • Valuing all the Estate assets and liabilities
  • Paying debts, bills and mortgages
  • Distributing the assets to the Beneficiaries
  • Defending the Estate from claims made against it

With a Will in place, the process of Estate Administration might seem simple and straightforward. However, each of the above responsibilities (and more) requires time, effort and plenty of paperwork. And the difficult thing is that, as an Executor, you could be held personally liable if anything goes wrong and you are at fault.

The same can be said for Estates left without a Will or where the deceased owner died intestate. In such cases, instead of seeking a Grant of Probate, the person tasked to take charge of the Estate (called the ‘Administrator’) needs to apply for Letters of Administration from the state Supreme Court.

Whether you are an Executor or Administrator, it is best to seek legal executor advice when anything is unclear or there are warning signs either at the beginning of Estate Administration or along the way. Legal executor advice is highly recommended before the distribution of assets to confirm compliance with state laws.

Also, remember that, as Executor or Administrator, it is well within your right to spend money on executor advice and you should do so to protect the Estate. This way, you can reduce your personal liability by doing the right thing. You’ll also avoid the stress that comes with not knowing what to do legally when you are faced with problems and claims against the Estate.

1. Why Should Executors and Administrators Seek Legal Advice?

As an Executor or Administrator, getting legal assistance from a probate lawyer or solicitor along the way makes sense for the following general reasons:

  • To seek initial advice on the extent of your responsibilities and obligations.
  • To know the requirements to be able to handle the assets of the estate efficiently and properly.
  • To ensure compliance with the law prior to the distribution of assets.

By following sound legal executor advice from an experienced lawyer, you can undertake the role and proceed with confidence whilst receiving ongoing counsel or assistance from a solicitor.

Apart from providing you with guidance on general matters concerning Estate Administration, a solicitor can also give you valuable legal advice in the following mistakes you should avoid or areas of concern:

  • When you are considered liable for damage to unsecured or uninsured Estate property.
  • When beneficiaries are pursuing a claim against you to recover the shortfall if the Estate assets are not sold at a fair price.
  • When you still need to make payments to the Australian Taxation Office (ATO) on behalf of the deceased after distributing the assets of the Estate to the Beneficiaries.
  • When it is being alleged by the Beneficiaries that you caused unnecessary delays in the administration of the Estate, resulting in a financial loss.

As much as possible, it is crucial to avoid any conflicts arising between you and the Beneficiaries of the Estate. When a Beneficiary is unhappy or dissatisfied with the way an Executor or Administrator is managing the Estate, they can apply to the Court to have you removed or replaced.

“We believe it is actually in the interest of both the Estate and you (as Executor or Administrator) to spend a few thousand Dollars on legal fees from the Estate during the administration process, rather than having to pay thousands from your own pocket afterwards should anything go wrong.”

“You are legally allowed to seek and pay for legal advice in order to fulfil your duties, act in the best interest of the Estate and administer correctly.”

Stephan Dahinden, Founder of simplyEstate

2. Problematic Situations

Whilst being an Executor or Administrator is already challenging in itself, the administration of an Estate may be further complicated for the following reasons:

2.1 Complex Assets

If the Estate holds agricultural lands, the Executor or Administrator needs to act as a farmer businessperson. If the Estate includes a business, the Executor or Administrator needs to take on the role of a business operator. And in so doing, does the Executor have the requisite experience and expertise to be able to manage such assets properly?

When there are other types of assets in the Estate, like stocks, bonds, timeshares, investment properties or holiday homes, these can all add to the complexity of administering the Estate and may require assistance.

Moreover, if the assets include artworks, coins, stamps and antique collections, as well as family heirlooms and valuable jewellery, the complexity of Estate Administration also increases. Why? These kinds of assets need to be valued by professional appraisers and may be contentious as there could well be sentimental value attached, which is different from person to person.

Add to this the possibility that the deceased holds assets or real property in other states, then the Executor or Administrator will have to deal separately with other state courts to reseal Grant of Probate and abide by the legal requirements in those places.

This is why the larger the Estate, the more difficult administering it becomes. Estate Administration involving a relatively small or simple estate can already take anywhere between six to 12 months. By adding multiple types of assets to the picture, the length of the Estate Administration process can increase significantly.

2.2 Complicated Family Setups

Some Australian families today are unlike the conventional families of the past. They are sometimes complicated, such as when the deceased got divorced one or more times, leaving behind children with different ex-spouses plus their children with their current or last spouse. Another example would be if the deceased had a de facto relationship aside from having been married once to another person or ex-spouse.

The case for blended families is no different. For example, the deceased may have been in a second marriage when they died. This means there would be children from their previous spouse and children with their last known spouse.

If there are children born out of wedlock, that situation would add another kind of complexity to the administration of an Estate. There would be other Beneficiaries to consider aside from the children of the deceased with their spouse.

When these complicating factors are hidden from the immediate family, current spouse or de facto partner, claims against the Estate may be made by unnamed Beneficiaries, such as children born out of wedlock or those who went unacknowledged by the deceased.

2.3 Discordant Families

Other than complicated familial setups, there are also families that are constantly in discord or disagreement over some real or perceived slight, where quarrels can erupt, fuelled by grief, frustration and money issues.

In such cases, it is the Executor’s or Administrator’s job to conduct their dealings in an impartial manner, especially during disputes, such as when a family member wants to contest the Will. Of course, this is easier said than done, especially if the Executor or Administrator is also a family member and having someone by your side who can maintain objective could greatly assist.

If you have been named an Executor of the Estate left by a deceased family member, know that you are well within your rights to refuse the role. This is particularly important if you are aware of the family issues that may deter you from performing your role impartially and effectively. Just make sure you do not do any type of administering of the Estate before you refuse your role as Executor.

This means that after you have performed any executorial tasks, no matter how simple, you may no longer be able to relinquish your being an Executor of the Estate.

2.4 Some Beneficiaries Have Addictions or Are Spendthrifts

As an Executor or Administrator, one of your primary tasks is to protect the Estate and the interests of all Beneficiaries. Therefore, if leaving money to a beneficiary outright is deemed unwise, you may arrange to have an annuity purchased using the proceeds of the Estate.

Another option would be to establish a testamentary trust that sets out the terms and conditions upon which money can be released to a Beneficiary. This way, monthly payments to the Beneficiary may be arranged or other provisions that would ensure their living expenses are covered but not their addictions or luxuries.

3. Benefits of Seeking Legal Advice for Executors of Wills

Possible complications in Estate Administration are not limited to the above situations.

There are other complicated circumstances that Executors (or Administrators) may encounter, such as when the Beneficiaries are minor children of the deceased or a Beneficiary is handicapped or disabled.

Whatever the case may be, below are the general benefits of seeking legal executor advice early on in the Estate Administration process:

  • Identify risks or issues and get valuable advice on options to tackle difficult matters. A solicitor or probate lawyer has the background, experience, skills and know-how to anticipate possible risks, issues or complications that may arise in the administration of an Estate. With their foresight and advice, you can avoid such difficulties and protect yourself from personal liability.
  • Issue and respond to formal correspondence between the parties with specific claims and due dates. If you need to formally communicate with concerned parties, such as the Beneficiaries and their legal representatives, having a solicitor on hand to guide you could be beneficial, as you need to be careful with the wording of your correspondence. This is particularly significant in correspondence concerning claims made against the Estate.
  • Evaluate the prospects (including the costs and benefits) of pursuing a legal case, that is, whether it is a solid case and the likelihood of winning the case is high. When there is contention regarding the Estate or claims against it are being raised, you need the expertise of a probate lawyer or solicitor. This way, they can assess the costs (money, time, effort and stress) of defending the Estate, your chance of successfully defending it and the benefits or impact of receiving a favourable or unfavourable outcome. As well, when a case is made by the Estate against other parties, the prospect and likelihood of having a successful case against them would be best evaluated by a solicitor.
  • Facilitate mediation as an attempt to resolve conflicts outside of court. If there are claims against the Estate or conflicts arising in the process of administering it, mediation is a necessary step before cases are accepted and heard in court. This is required to avoid the costs of pursuing a case in court, as well as the stress that comes with it. Working with a lawyer ensures you have a ready legal representative for any mediation needs.

Trusted Estate Lawyers Near You

simplyEstate works with some of the most experienced Estate Lawyers across Australia to assist Executors and Administrators with specific advice or the complete process.

Estate Lawyers in Perth – WA

apply for grant of probate or letters of administration with support from Estates Plus in Perth Western Australia WAapply for grant of probate or letters of administration with support from FourLion Legal in Perth Fremantle Western Australia WAapply for grant of probate or letters of administration with support from Lynn & Brown Lawyers in Morley Ellenbrook Perth Western Australia WA

Estate Lawyers in Sydney – NSW

apply for grant of probate or letters of administration with support from Atkinson Vinden Lawyers in Chatswood Sydney New South Wales NSWapply for grant of probate or letters of administration with support from Szabo & Associates Solicitors in Surry Hills Sydney New South Wales NSWapply for grant of probate or letters of administration with support from Marsdens Law Group in Sydney Camden Campbelltown Leppington Liverpool New South Wales NSW

Estate Lawyers in Melbourne – VIC

apply for grant of probate or letters of administration with support from Carew Counsel Solicitors in Melbourne Victoria VICapply for grant of probate or letters of administration with support from McNab McNab & Starke Lawyers in Melbourne Essendon Sunbury VICapply for grant of probate or letters of administration with support from Sharrock Pitman Legal in Glen Waverley VIC

Estate Lawyers in Brisbane – QLD

apply for grant of probate or letters of administration with support from The Estate Lawyers in Brisbane Gold Coast QLDapply for grant of probate or letters of administration with support from Perspective Law in Brisbane QLD

Conclusion

As the Executor (or Administrator), you need to ensure you complete the Estate Administration process with the confidence that everything you are doing is legal and within the bounds of your role. Therefore, it’s important to have a solicitor by your side who you can call upon when needed, especially when the Estate is sizeable or when the situation is complicated.

If you would like to discuss your approach for Deceased Estate Administration before you contact a lawyer, simplyEstate’s Executor Support can help. Book a free phone-appointment to discuss your next steps.

For detailed information and guidance on the Estate Administration process, you may check the simplyEstate guide and check out useful Checklists & Tools designed to help you stay organised and efficient.