“To be or not to be, that is the question!” – William Shakespeare.
Whether you are a named executor or the person first entitled to administer the estate, you will have to decide whether you want to take on this responsibility or not. If you are appointed with one or more co-executors or administrators, you’ll also have to consider whether you will be able to work constructively with those people. Jointly appointed personal representatives must act jointly, which means that unanimous agreement will need to be reached – a challenge for many of us in the best of circumstances!
This role can be (or become) a burden.
So, what is the role of a personal representative during an estate administration?
- General duties and responsibilities – to call in, preserve and distribute the deceased’s estate
The basic duties of any personal representative are to collect the assets of the deceased, pay any debts, and distribute the remaining estate to the beneficiaries in a timely manner in accordance with the will, the intestacy rules or any settlement agreement or order made by the court.They also have a duty to protect the estate assets and maximise the estate’s value for the benefit of the beneficiaries. For example, if there is significant cash held in the estate at any time, the personal representative should invest that cash in an interest-bearing account so that the funds at least earn interest before distribution.In general terms, the personal representative must act reasonably and diligently.
- Fiduciary duties and the rights of beneficiaries of an estate. Because the personal representative holds a position of significant trust and confidence, they owe what is called a ‘fiduciary duty’ (a duty owed by someone who has the care and control of money or property) to the beneficiaries. The main fiduciary duty is to act in the best interest of the estate and its beneficiaries at all times.The personal representative is accountable to the beneficiaries for their actions in the administration of the estate. So, if a beneficiary requests a detailed accounting of the estate’s assets and liabilities, the personal representative must provide this. A detailed inventory of the estate assets and liabilities must be prepared, and estate accounts must be maintained throughout the administration.If the personal representative fails in their fiduciary duty, then a beneficiary can make a complaint to the Supreme Court, which might then make orders against the personal representative to repay any losses and pay costs personally.
As you can see, these are weighty responsibilities.
Click here to access an ‘Executor’s Checklist’ to gain further insight into other typical responsibilities to help you decide whether or not you are willing and able to take on such a role.
What if a personal representative is unable to act?
In some cases, the personal representative will be unable to take on the role.
Some examples of people unable to act due to being under a legal ‘incapacity’ include:
- a child under the age of eighteen (18). In this circumstance their guardian can act until they’re of age.
- a person suffering from mental or physical disability. In this circumstance their enduring power of attorney, or other jointly appointed representatives, can act.
- a company (unless a trustee company) can only be appointed if an authorised officer of the company agrees to act.
Surprisingly, a bankrupt person or a person with a criminal record might still be able to act, provided the willmaker was aware of the bankruptcy or criminal record when appointing that person. However, being in prison is a deal breaker.
What if a personal representative is unwilling to act?
If you are eligible but simply don’t want to take on the role, or if you can’t because you might have a conflict of interest (for example, you want to make a claim against the estate), then you can renounce. Usually that means that the next person in line (or any remaining co-representatives) will take your place. This is unless all parties consent to the appointment of an independent administrator, such as a professional trustee or a specialist lawyer with estate administration experience.
If you do take on the role, you should also be prepared for the possibility that the will might be challenged or that a claim might be made against the estate. If litigation is commenced, the time taken to fulfil the role can become quite significant. If you are a relative or family member of the deceased, the emotional costs of remaining in the role can be as taxing as the financial costs. There is also the risk of personal liability, which is what usually drives personal representatives to seek specialist estate administration services from an experienced solicitor.
If you are considering renouncing your role, you should get specialist probate and estate administration advice before doing so. It is best to get that advice and make the decision fairly quickly so that you don’t hinder the estate administration process while you decide – and so you don’t end up being faced with a court action against you personally for holding things up!
Resolve Estate Law specialises in Estate Administration services, we can advise you regarding your role as personal representative (as executor of a will or as administrator of an estate) and advise you regarding your roles and responsibilities or what steps are needed to renounce your role. You can also ask Zinta Harris to take on the role as independent administrator. Contact us by phone or email, or click here to arrange your complimentary 15 minute call.