As an executor of a deceased estate one of the biggest questions you might have is “when can I distribute the estate?”. You’ve gone through the motions of obtaining the Grant of Probate and have taken steps to call in all of the assets. There is money sitting in a bank account, and you have beneficiaries enquiring of you as to when they can have access to the funds.
As tempting as it might be to wrap the process up as soon as possible, it is important that you continue to follow your obligations as an executor and take steps to act in the best interest of the estate.
Executors of a deceased estate in the ACT will need to have regard to and follow the Administration and Probate Act 1929 (ACT).
Section 64 of the Administration and Probate Act 1929 (ACT) outlines that an executor can only distribute the estate once:
6 months have passed since the date of the deceased’s death; and
That the executor has published a Notice of Intention to Distribute the Estate (a published document that puts all creditors and interested parties on notice that the executor intends to distribute the estate in accordance with the deceased’s Will after the passing of a further specified number of days); and
All debts of the estate have been paid.
You may be thinking “I already put creditors on notice when I filed my Notice of Intention to Apply for Probate”. While that is correct, it is important to do so again before distributing the estate; a failure to do so could have significant ramifications for you as the executor. The period of 6 months following the deceased death is seen to be a reasonable period of time for creditors to raise a debt with the estate.
Further, the Notice of Intention to Distribute will place any potential family provision claimants on notice of your intentions to distribute the estate; those potential claimants have a period of 6 months from the date the Grant of Probate was issued to challenge the Will.
In the event an executor fails to comply with section 64 of the Administration and Probate Act 1929 (ACT), there is a risk that the executor will be personally liable to repay funds into the estate in the event a creditor files a debt with the estate, or a family provision claim is made (in this regard costs will likely be incurred in responding/defending the claim regardless of whether the claim is successful).
If you are unsure of your obligations as an executor, or what you need to do to ensure compliance with section 64 of the Administration and Probate Act 1929 (ACT), you should seek specialist legal advice from an estate lawyer.
Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Peta Sutton