Executors of an estate have an obligation to engage in the due administration of the estate.
Enormous obligations are cast upon an executor to gather in the estate, pay all testamentary debts and expenses and to distribute the estate in a correct and legal way.
Commonly, an executor is unsure of his or her obligations without legal advice.
Executors who seek to administer an estate without legal advice may place themselves in a difficult situation where they are personally liable for the creditors of the estate and for large claims against them.
An executor should always seek legal advice concerning the administration of an estate.
After a Grant of Probate is obtained, the executor/s are bound to gather in the estate. This term means that the assets owned by the deceased person must be placed in the legal name of the estate. For example, a bank account owned by John Smith would be placed in the name of the executor on behalf of the estate of John Smith.
As part of the administration of the estate, it may be necessary to sell assets so that all debts and estate expenses may be paid. In some cases, it is very unhelpful for assets to be sold as part of the administration of the estate and it may be more helpful for them to be kept intact and appropriated to beneficiaries as part of their inheritance.
There may be confusion as to which parts of the estate are to be used for the payment of debts and expenses.
An executor may discover that a deceased person failed to keep up to date with their taxes or erroneously made a claim on social security. In both of these examples the executor is bound to discharge the obligations of the estate in paying all taxes that ought to be paid. If the executor fails to do this, the executor will be personally liable. Similarly, with regard to social security that ought not have been claimed, it will be necessary for the executor to negotiate with the relevant government department concerning a refund of the overpaid social security or a release.
The administration of the estate may include defending a Family Provision claim or other estate litigation. It may also mean enforcing the rights of the deceased, such as seeking to set aside gifts and other transfers that the deceased made due to undue influence or a deterioration in capacity.
The administration of an estate is often complex, and should always be done in conjunction with sound legal advice.
It’s important to remember that failure to administer the estate appropriately may result in the executor being personally liable for their oversights.