I have written before about what an Executors role is in a deceased estate but it can still be confusing with many unsure of exactly what they have to do following a persons death. Obviously the Executor/s are the person/s responsible for seeing the estates assets are dealt with in the manner the deceased wanted, in the Will and in accordance with the law. While often the first task for an Executor is to organise the funeral, what about any property or real estate?
In all but small estates an Executor requires the approval of the Supreme Court to validly deal with the Estates assets. That approval comes from an application to the court that results in a Grant of Probate, in the case there is an Executor appointed by a Will, in other cases it is called obtaining Letters of Administration.
Until that approval is obtained there is no lawful right for an Executor to deal with the assets of the Estate. In fact the law deems the Estate to vest in the public trustee until such time as the courts approval is given. The Executors role is really one of securing and preserving the Estate until the court gives the authorisation to start dealing with property. The public trustee is limited to a passive role and has no obligations or duty to take any action except in extreme circumstances. This can be impracticable with many estates so the law recognises there may be a need for ‘acts of necessity or humanity’. This can be not only to preserve the Estate but also to take action such as to secure or maintain property, carry out urgent repairs or maintenance, feeding and caring for livestock or animals, collecting debts and even making arrangements for the payment of funerals is appropriate.
Banks will freeze accounts of deceased persons upon being advised of a death and there can be difficulties with creditors chasing for payment of accounts. It shouldn’t however affect joint accounts. Often banks will consider applications to release specific funds to cover such issues, until the courts authority is obtained. Banks and financial institutions have an obligation themselves not to release funds without proper authority and may be liable to beneficiaries in the event of inappropriate releases.
We at Johnston Tobin Solicitors are experienced in dealing with various organisations and institutions and can save Executors a great deal of trouble dealing with Estates. Give me a call if you would like to know more.
