Wills, Intestacies, Estates and Funerals

Procedure for Administration of Estates

The notes which follow are sufficiently detailed to enable a lay person to administer a simple estate, particularly if he or she is sole beneficiary, without having to hand over the work to a legal professional. (An executor who is one of several beneficiaries, or not a beneficiary at all, should hesitate before undertaking the administration unassisted, as conflicts and criticisms can arise in the course of the administration.)

Introduction to the Task of Administration

The legislative basis for the administration of estates in the Territory is the Administration and Probate Act, the Wills Act, the Trustee Act 1925 (ACT) ('the Trustee Act') and the Court Procedures Rules 2006 (ACT) ('the Court Procedures Rules') Part 3.1 rr 3000 - 3120. Mason and Handler and Geddes, Rowland and Studdert are used by the Supreme Court in the ACT to fill in gaps in the local practice. There is no book which deals specifically with ACT practice.

The orderly devolution of property on death is an important feature of civilised society. There are many possible methods by which this orderly devolution can be secured. The approach adopted in Australia is basically as follows: estates of deceased persons are usually administered by private individuals, normally with the assistance of a solicitor or the Public Trustee. There is a minimum of official interference in the process of administration, but in most cases the person administering the estate (the executor or administrator -- the "personal representative") requires the official authority of the Supreme Court in order to perform the task of administration. This official formal authority is the grant of representation (grant of probate if the grant is to an executor named in the will, or grant of letters of administration if the court has to choose and appoint someone to administer the estate, as the case may be -- see the descriptions of various forms of grant at Glossary of Legal Terms Used).

Simple estates can be administered by a lay person (particularly if he or she is the sole beneficiary), and a person named as executor in the will need not hand the administration over to a solicitor, the Public Trustee or a trustee company if he or she does not want to do so. However, the usual and generally the most sensible thing to do (particularly if there are a number of beneficiaries to whom the executor is answerable, and who will be looking critically at what the executor is doing) is to get a professional person such a solicitor or the Public Trustee to do the administration. The executor named in the will (or the next of kin) can consult a solicitor, the Registrar of Probates in the Supreme Court Building or the Public Trustee soon after the death to get advice and direction about how to proceed. A solicitor or the Public Trustee will usually do the work of administering the estate perfectly efficiently and more cheaply than a trustee company.

If you have been appointed executor and you are looking for someone to do the work of administration for you, you should not be afraid to ask solicitors or the Public Trustee to give you an idea of what they will charge, and to shop around a little. Choosing a good solicitor is as difficult as choosing a good doctor or dentist, and the best way to find out who is good is to ask an independent person who has knowledge or experience.

The Person Responsible for the Administration: the Personal Representative

See "personal representative" at Glossary of Legal Terms Used.

The term "personal representative" includes "executors" and "administrators". It is important to distinguish clearly between the two. An executor is a person appointed in a will to administer the estate of the deceased person; an administrator is a person appointed by the court to administer the estate -- usually because there is no will, or because no person appointed by the will is able or willing to undertake the executorship.

Why are they called "personal representatives"? Because they represent the person of the deceased -- they carry on the deceased's court actions after his or her death; they can be sued by the deceased's creditors.

The office, powers and duties of the personal representative after grant is discussed below at The Task of Administration. Personal representatives have a very particular function: to administer the estate; and their obligations flow in part from this fact. Personal representatives are a particular kind of fiduciary (see Glossary of Legal Terms Used , under "fiduciary"), and some of their obligations flow from this fact too.

Passing over the named executor

In special circumstances the court will pass over the executor named in the will. However, this is only done in most unusual circumstances, as the court will make strenuous efforts not to interfere with the testator's choice. Thus, the Court in O'Connell v Shortland (1989) regarded the named executor as not being trustworthy or upright in his dealings with trust property, and had no doubt that the named executor, a friend of the testator, would conflict with a beneficiary under the will (the testator's wife). The Court did not actually refuse to grant probate to the named executor; instead it granted probate to the named executor "on the strength of his undertaking that he will join in an application after the grant has been formally made, for the substitution of another executor and trustee" (at p 355).

Outline of the Task of Administration

In outline, the executor or administrator should:

(a) deal with funeral arrangements in consultation with the family;

(b) decide whether or not the will has to be formally proved -- that is, whether it will be necessary to apply for a grant of probate of the will. This depends on the size of the estate and the assets in it. If the estate contains land, substantial bank accounts, substantial insurance policies or substantial blocks of shares it will be necessary for the will to be formally proved. (Property, which includes both land and personal property such as bank accounts and chattels such as cars and furniture, held by the testator as a joint tenant does not form part of the estate, but goes automatically by survivorship to the other joint tenant: see Glossary of Legal Terms Used , under "joint tenancy";

(c) advertise his or her intention to apply for a grant of probate of the will (if this is required). The advertisement will ask creditors to notify the executor of claims against the estate;

(d) ascertain the assets and liabilities of the estate;

(e) make an inventory and keep detailed accounts;

(f) gather in the assets and protect them;

(g) pay the debts of the estate; and

(h) distribute the net assets according to the will or the intestacy rules as the case may be.

The executor may apply for executor's commission of up to 5 per cent of the value of estate. Commission (usually granted at a rate much lower than 5 per cent) will only be granted if the estate accounts are presented to the court, and are accepted as being in order. Usually lay executors do not seek commission.

The Task of Administration

A named executor who has not intermeddled in the estate has no duties in relation to the estate and cannot be compelled to act. The named executor can renounce; or reserve the right to come in and prove the will later; or, if another executor is appointed with them, allow that executor to take on the task of administration; or the executor can hand over the task of administration to a professional executor (such as the Public Trustee). Ultimately, the executor can simply do nothing and wait for others to take control, though this course is unhelpful and is not advisable.

The situation is different if an executor has intermeddled in the estate. Intermeddling means acting in such a way as to show that the person has taken on the role of executor. Selling estate assets would normally be intermeddling. Even after intermeddling, the named executor cannot be compelled to act in the administration as a whole, but can be required to account for the property in relation to which he or she has intermeddled. The limitation placed by the law on the intermeddling executor is that he or she is prevented by the intermeddling from renouncing the executorship except with the consent of the Supreme Court. Note that any person who intermeddles in an estate is bound to keep detailed accounts of what he or she has done.

The personal representative has the task of administering the estate after the deceased's death. The main elements in this task are (after getting a grant of probate or letters of administration if necessary) to carry out the following duties (compare the Succession Act 1981 (Qld) s 52)).

To arrange the funeral

The executor named in the will is the proper person to arrange the funeral. This should be done in consultation with close relatives, and any decision should be governed, as far as possible, by the known wishes of the deceased. In appropriate circumstances a close relative or even a stranger is entitled, even before grant, to arrange for the disposal of the deceased's body: see Arranging the Funeral.

To protect the assets

The named executor (or the person who will become the administrator) should take steps to protect estate assets urgently should this become necessary. However, as a person who intermeddles in the estate may lose the right to renounce, caution should be exercised -- see The Task of Administration and Administering an Estate without a Grant.

To get a grant if necessary

If a grant is going to be needed, the person who will be applying for it should get ready to do so: on the need for a grant, see Administration of Estates with or without a Grant, and on getting a grant see Getting a Grant -- Practical Procedures.

To get control of the assets (sometimes called "reducing the estate into possession")

This means to make an inventory and to be prepared to exhibit it to the court, and to take care of and to get control of the assets -- for example, to recover (by legal action if necessary) debts due to the deceased. The personal representative is under a duty to open an estate account and put money paid to the estate into this account, and not into the personal representative's own personal account. This reflects the fact that the personal representative is a fiduciary.

To pay the duties, administration expenses and debts

See Duty to discharge estate liabilities: solvent estates.

To distribute the net estate

The personal representative then has to distribute the net estate (after making provision for the administration expenses and debts) to beneficiaries under the will or intestacy laws or to trustees to be administered for minors or according to the terms of the will, together with any interest payable. See [33.10.2.3] Duty to distribute net assets.

To account for the administration

See Duty to account.

To deliver up (hand back to the court) the grant of probate or letters of administration if required by the court to do so.

This will not happen unless the court revokes the grant for some special reason.

Will the Lay Person Administer the Estate Personally, or get Professional Help?

The personal representative normally applies to a professional person, such as a solicitor, trustee company or the Public Trustee for help in winding up an estate. Any such person will in all probability have to take control of the administration of the estate. A lay person may decide to do the administration without the assistance of a professional person. The notes which follow are written for the professional person, say a solicitor, who has to administer an estate, but the points and suggestions made apply equally to a lay person who decides to administer the estate without professional help. Often nowadays, the solicitor and lay person may agree that the solicitor will do most of the tasks but the lay person may undertake some tasks in order to save costs and time.

If the lay person named as executor, or entitled to a grant of letters of administration, decides to consult a solicitor, the solicitor will determine whether a grant is required or not. Then the solicitor will, through the personal representative, apply for a grant (if necessary), collect, protect and take into possession the estate assets (see To get control of the assets (sometimes called "reducing the estate into possession"), discharge liabilities and distribute the balance. It is proposed at this stage to outline the practical procedures used by a solicitor who is asked to act. Note that the Registrar and the Public Trustee are prepared to give practical advice to solicitors (as well as to lay people) who are administering estates. The Registrar's readiness to give advice, however, relates to procedure only, and not to legal advice on matters such as the interpretation of the will.

Administration of Estates with or without a Grant

Simple estates can often be administered without a grant, although a grant is usually necessary.

Need for a grant

The person who will wind up the estate will have to decide at an early stage whether it is necessary to apply for a grant of probate or letters of administration.

A person without a grant can effectively administer certain estate assets, and if the estate consists only of such assets, a grant is not legally required. Assets which can be administered without a grant include goods (such as motor vehicles, household goods, jewellery, paintings and so on), modest bank accounts and the proceeds of small insurance policies. There are simple procedures for transferring shareholdings: Corporations Act 2001 (Cth) ss 1071A, 1071B, 1072A (replaceable rule) and 1072E.

Assets in the estate which will require a grant include real property (land) (except where the deceased was a joint tenant), substantial bank accounts, insurance policies, most shareholdings and other interests in corporations. Inquire from the institution concerned.

Other factors which would make it advisable not to proceed without a grant are doubt about the whereabouts of a will, the validity of the will or its meaning, doubt about the right of the executor or the administrator to administer, the possibility of litigation by or against the estate, or disharmony between the beneficiaries. Litigation normally also requires a grant. In the ACT, the executor should get a grant if there is a possibility of a family provision claim, because the time within which the application must be made (12 months after grant) does not start to run until the grant is made: Family Provision Act s 9. The advice of a professional should be obtained. A lay person who is administering an estate should get professional advice in these situations.

Whether a grant is required or not is therefore a practical question. Most small estates are administered without a grant, and this is the correct and usual procedure. However, the advice of the Registrar or the Public Trustee or a solicitor is normally obtained, so that major pitfalls are avoided by the lay person administering an estate.

Administering an Estate without a Grant

Certain risks and liabilities are involved

Some of the statutory protections available to the personal representative who has taken out a grant are not available to the person acting without a grant, and the person acts at her or his own risk in administering the estate without a grant. If he or she causes any loss to the estate, he or she is personally liable and has no right to indemnity, except to the extent that he or she is protected by advertising her or his intention to distribute: Administration and Probate Act ss 64, 65. This is not a problem if there is no risk of liability, for instance if the estate is solvent and the person acting without grant is the sole beneficiary.

Keeping the administration moving

If the named executor is slow about taking out a grant, he or she can be cited to take out a grant or to renounce the executorship: Administration and Probate Act s 25; Court Procedures Rules r 3114, and see r 3115. The named executor can be cited even if a person without a grant has started administering the estate. If the person acting without a grant is the rightful executor he or she cannot renounce without the consent of the court -- Will of Lyndon (1960). There are further mechanisms to keep the administration moving. Some are appropriate where no grant has been issued; some are appropriate where a grant has been issued -- see Administration and Probate Act ss 24, 26, 32 and 61. See too Duties of the Personal Representative.

Power to delegate; powers of the public trustee to administer

The person named in the will as executor, or the person entitled to administration of the estate when there is no named executor, may delegate to the Public Trustee or a trustee company and so avoid taking out a grant or otherwise becoming involved in the administration of the estate. The Public Trustee has power to administer or take over the administration of estates. See generally Glossary of Legal Words Used, Choice of executors and trustees, and Public Trustee.

Administering an Estate with a Grant of Representation

The personal representative

The task of the personal representative is to administer the estate according to law. Before grant the personal representative has no duties or privileges, though, as described in Administering an Estate without a Grant, can effectively administer certain estates. If the executor named in the will fails to take out a grant he or she may be cited to take out a grant or to renounce: see Keeping the administration moving.

Effect of a grant

The grant constitutes recognition by the court of the personal representative's right to administer the deceased's estate. The grant also vests the estate assets in the personal representative.

After grant the personal representative has full authority to act in relation to the estate, and with the grant the personal representative will be able to deal effectively with all estate assets. After grant, the personal representative has valuable statutory and common law protection: see Certain risks and liabilities are involved in Duty to distribute net assets.

Getting a Grant -- Practical Procedures

Small estates

Simplified procedures for taking out a grant exist for estates under $150,000: Administration and Probate Act ss 87C ff.

Forms and precedents -- obtaining and lodging

The Registrar will issue a set of precedents on application. The precedents are useful where a simple grant is being sought, but they do not deal with more complex applications such as applications for limited grants, or applications where a sole executor has renounced, or has predeceased the testator. Some legal stationers in the ACT will provide and even lodge documents -- see "Legal Stationery" or "Title Searchers" in the Yellow Pages.

The will; and searching for the will

A. Lost will

If you believe that the testator may have made a will, but you are not sure, or if you know there was a will but you can't find it, you should consult a professional person such as a solicitor or the Public Trustee. When searching for a will, inquiries should be made with the deceased's bank, solicitor and insurance company. The Public Trustee and the Registrar of Probates should also be checked. If no will is found, inquiries should be made in places in which the deceased previously lived.

B. Existing wills

If you are going to administer the estate yourself, and you have the testator's last will in your possession, should examine the will to determine whether:

(a) a beneficiary or the spouse of a beneficiary is a witness to the will;

(b) it is duly executed by the testator and two witnesses;

(c) beneficiaries and executors are accurately described and identified, and if it is generally clear;

(d) an executor has been named in the will;

(e) the executor is identified and willing to act. If so, he or she will be required to sign the application for probate and other documents; and

(f) its provisions create no legal problems.

If your examination of the will reveals any problems, you should consult a professional person.

C. Informal wills (documents which may have been intended to be wills, but which are not properly executed)

Since the Supreme Court has the power to admit to probate documents which do not comply with the formal requirements for wills, persons applying for a grant are required to produce to the Registrar informal documents which may have been intended by the deceased to be testamentary. Such documents may include draft wills, letters and instructions for wills: Wills Act s 11A.

D. Particulars of death

The person applying for the grant will have to get the death certificate. The death certificate is not available until after the funeral and will be issued even where there is a coronial inquest pending. Usually a doctor who attended the deceased at death, or, if necessary, a member of the family will be in a position to make an affidavit of death.

E. Did the deceased die intestate?

The person administering the estate will have to identify next of kin, and search for:

• any will (including informal testamentary documents);
• marriage certificates; and
• birth certificates.

Application for a grant

Once it is decided that a grant is necessary, the major effort is directed at getting that grant. However, proper steps must be taken to protect assets as necessary even before grant.

A. Grant of probate

Documents required

When 14 days have elapsed after publication of notice of the intended application (Court Procedures Rules r 3006 and approved form 3.7), the documents you must file in support of the application are:

Document			Court Procedures Rules Part 3.1	Form(s)
1	Application for Probate		r 3005	Form 3.1
2	Affidavit of Applicant for Probate with supporting documents:		r 3010	Form 3.11
		Death Certificate;
		Informal will of which probate is not being sought;
		Tear Sheet (evidence of Notice of Intended Application);	rr 3006, 3010	Form 3.7
		Summary of responses to Notice of Intended Application;	r 3010	Form 3.11
		Certificate evidence (Birth, Marriage); and
		Statement of Assets.	r 3010(6)(c), 3021(3)	Annexure C to Form 3.11
3	Affidavit of Search		r 3011	Form 3.14
4	Affidavit of Attesting Witness, if necessary		rr 3013 & 3030-3035
5	Original Will of deceased
6	Probate (in duplicate)		r 3005	Form 3.4
7	Affidavit of Delay -- if applying more than six months after death		r 3010(1)(e)

The Statement of Assets (that is, the inventory) (required by Court Procedures Rules r 3010(6)(c)) is normally annexed (and deposed to) with the affidavit of the applicant. Note that the inventory contains a statement of assets but not of liabilities. The court is interested only in the gross value of the estate -- the total value of the assets -- and not the net value.

Preparation of the documents required for a grant of probate

For a grant of probate or letters of administration, the applicant must collect and prepare the documents needed for an application (listed above).

(a) Application for Probate Form 3.1. This must be signed by the applicant or the applicant's solicitor. You do not need to serve the Application.

(b) Affidavit of the Applicant for Probate: see r 3005(2)(b) and Form 3.11.

In the Affidavit of the Applicant the applicant identifies the will (normally the applicant identifies the signature and handwriting of the testator), asserts that the applicant is the person named in the will, that the applicant is over 18 years old and other matters detailed in the ACT Court Procedures Rules rr 3005, 3010(3)(b). The rules provide that the applicant for probate must include an affidavit setting forth, if that is the case, that "the applicant is unaware of the existence of any document, or part of a document, (other than the will the subject of the application) purporting to embody testamentary intentions of the testator". This is necessary because the dispensing provision in the Wills Act s 11A allows the court to admit to probate documents which embody the testamentary intentions of the testator even though that document does not comply with the proper formalities.

The original certificate of death must be lodged with the court for sighting by the Registrar, but a certified copy of the certificate may be annexed to the affidavit. The Registrar will return the original once sighted. This also applies to any other certificates which may need to be annexed to the Applicant's affidavit.

If there are problems with the validity or the text of the will, other affidavits will certainly be required.

(i) Pinholes or paperclip marks: if there are pinholes or paperclip marks or traces of sealing wax an affidavit will be required to explain what was attached (the possibility is that another testamentary document was, for example a codicil, or a document incorporated by reference).

(ii) Will signed in different inks: if different inks have been used by the testator and witnesses, it suggests that there may have been a breach of the formal requirements -- a signature may have been added later, perhaps. Affidavits from attesting witnesses will be required.

(iii) Informal wills: Informal documents which may contain testamentary intentions of the testator must be brought before the court (because they may be admitted to probate under the, Wills Act s 11A, and those affected by such documents must be notified: see Court Procedures Rules rr 3005, 3010.

(c) Tear Sheet (evidence of notice of intended application). Court Procedures Rules r 3006 requires the applicant to publish notice of intention to apply for a grant. Form 3.7 is used. You must be careful to deal accurately in the Notice with matters such as the different spellings of the testator's name, or other names he or she is known by, place of residence, occupation and the naming the executors in the will, because there must be no discrepancies between the Notice and the applicant's affidavit.

(d) Statement of Assets: Form 3.11 includes an annexure of Inventory of Assets. The inventory of assets should set out the gross assets of the estate. The practice is to lodge this inventory with the Application. The Inventory should include details of ACT assets only. You do not include jointly owned assets or life/superannuation policies that will be paid directly to a nominated beneficiary and not to the executor, and you do not include liabilities.

(e) Affidavit of Search: the affidavit of search must be prepared: r 3011 and Form 3.14. "Search" is for prior grants, for caveats against grants and for a will or later will, as the case may be. Make sure the search is after the expiry of 14 clear days from the publication of the Notice of Intended Application. The search should be done on the day of filing the application. The Registrar will require much wider advertising where the applicant is relying on the legal presumption of death where someone has been absent for seven years, and has not communicated with those people he or she would be likely to have contacted.

(f) Affidavit of Attesting Witnesses: if the will contains an inadequate attestation clause or no attestation clause, you must file affidavits from attesting witnesses. An inadequate attestation clause means one that does not correctly state the required formalities for a will, and state that those formalities were complied with: Wills Act s 9; Court Procedures Rules rr 3030, 3031.

(g) Original Will of the deceased: to comply with rr 3013 and 3030-3035, and conform with the first paragraph of the Applicant's affidavit, you must have the applicant and witness to the applicant's affidavit sign the original will in the margin. You lodge the will as a separate document.

(h) Probate: you must prepare Form 3.4 and lodge it in duplicate; and you must annex a copy of the will to Form 3.4: r 3005.

(i) Affidavit of Delay: you must file an affidavit explaining the reasons for delay if you are lodging the application more than six months from date of testator's death: r 3010(1)(e).

B. Grant of Letters of Administration on Intestacy

Documents required

Order 72 Rule 14 of the Supreme Court of the ACT requires affidavits in accordance with Forms 3G and 3H when applying for letters of administration. In an uncontested grant for letters of administration on intestacy, the following documents are usually prepared and lodged:

Document			Court Procedures Rules Part 3.1	Form(s)
1	Application for Letters of Administration		r 3005	Form 3.3
2	Affidavit of Applicant for Letters of Administration with supporting documents:		r 3005	Form 3.13
		Death Certificate;
		Informal will of which probate is not being sought;
		Tear Sheet (evidence of Notice of Intended Application);	rr 3006, 3010	Form 3.9
		Summary of responses to Notice of Intended Application;	r 3010	Form 3.13
		Certificate evidence (Birth, Marriage); and
		Statement of Assets.	r 3010, 3021(3)	Annexure C to Form 3.13
3	Consent to Administration		r 3011	Form 3.10
4	Administration Bond (if required by Registrar)		r 3045	Form 3.21
5	Affidavit of Search		r 3011	Form 3.14
6	Letters of Administration (called "engrossment") in duplicate		r 3005	Form 3.6
7	Affidavit of Delay -- if applying more than six months after death		r 3010(1)(e)

In an application for letters of administration, the applicant will have to prove that he or she has the largest interest (basically, the largest share of residue) -- so, original marriage and birth certificates necessary to prove relationship with the deceased will be required.

Bear in mind that not all grants of letters of administration are made pursuant to an intestacy. A grant of letters of administration will be made in any case where there is no executor able and willing to take a grant -- for instance, letters of administration with the will annexed (cum testamento annexo (abbreviated to cta)) may be made if there is a will, but no executor able and willing to take the grant. Note that we have not provided a list of documents required for a grant of administration with the will annexed: you will be able to work them out from the lists for grants of probate and of administration.

Letters of administration while the executor remains a minor may be granted if the executor named in the will is a minor.

Getting a grant of administration is rather more complicated and more drawn out than obtaining a grant of probate. For this reason (and because an administrator may have to provide an administration bond if there are minor beneficiaries: rr 3045-3053. The bond may be dispensed with by the Registrar: r 3046. Executors never have to provide a bond) letters of administration incur higher administration costs, it is not kind to those who come after you to die intestate and without appointing two executors (more can be a nuisance, and one is enough if the executor is the Public Trustee or a trustee company).

Preparation of the documents required for a grant of letters of administration

For a grant of probate or letters of administration, the applicant must collect and prepare the documents needed for an application (listed at [33.9.9.4] B. Grant of Letters of Administration on Intestacy - Documents required).

The table above lists the documents required for a grant of letters of administration on intestacy. It is very similar to obtaining a grant of probate.

Procedure for a grant

When an application is lodged with the Registrar it is examined in the Registrar's office to see whether it complies with the requirements of the Administration and Probate Act and the Court Procedures Rules. If the application is satisfactory, it is sealed and dated. If not, then further information is "requisitioned", and finally, when all is correct, it is stamped and dated. (A grant thus made by the Registrar is called a grant "in common form".) The Registrar may refuse to make the grant requested, giving reasons in writing, and the applicant then makes the application to the Supreme Court -- Court Procedures Rules r 3113. (A grant made after oral evidence before the Supreme Court is called a grant "in solemn form".)

The grant of probate or administration is then made and numbered and the seal of the court is affixed.