HELPFUL TIPS FOR EXECUTOR/S

A loved one has died and you have been appointed executor of his or her estate.  You are grieving and don’t know what the next steps are.

Here is a suggested list of who you may need to contact when it comes to administering a deceased person’s estate:-

  • Accountant
  • Ambulance Services
  • Australian Tax Office
  • Banks/Building or Friendly Societies/Credit Unions
  • Chamber of Commerce
  • Church or Religious Organisations
  • Clubs, Organisations and Associations, Libraries
  • Companies (eg. Directorships)
  • Department of Social Security/Centrelink
  • Department of Transport- Car Registration
  • Department of Veteran Affairs
  • Doctors, Specialists, Hospital, Dentist or Chemist
  • Electoral Office/ Local Government for Rates Etc.
  • Employer/Former Employer
  • Financial Institutions /Loan Companies/ Credit Card Providers
  • Home Appliance Rental
  • Home Delivery Service- Newspapers, Milk, etc
  • Home Nursing Services or Meals on Wheels
  • Household Help, Gardening Services
  • Insurance- Life, Accident, Home or Vehicle
  • Justice of the Peace
  • Medicare/ Health Benefits Fund
  • Phone, Mobile, Internet, Electric and Gas Companies
  • Post Office for Mail Delivery
  • Schools, Universities or Colleges
  • Service Organisations: RSL, Lion, Red Cross, Rotary, etc
  • Solicitor and/or Public Trustee
  • Superannuation Companies
  • Trade Unions or Professional Associations

Can you dispute a Will?

Do you consider you should have received an inheritance or were treated unfairly in a will?

If so, you may be entitled to make a claim against the estate under the Succession Act 1981 (QLD).

Under the Act, the following categories of “eligible persons” are entitled to challenge a will and seek further provision from the Estate:

  • A Husband or Wife of the deceased person;
  • A de facto spouse of the deceased person provided that person was living together as a couple on a genuine domestic basis for a continuous period of at least 2 years as at the date of the deceased person’s death;
  • A child of the deceased person (including an adopted child or step-child);
  • A former spouse of the deceased person. For instance, a separated spouse who is not yet divorced and was continuing to receive maintenance from the deceased person; or
  • A person who was wholly or substantially maintained by the deceased person, who was a parent of the deceased or a parent of a child under 18 years of the deceased person or a person under 18 years of age.

In Queensland there are time limitations in which an eligible person may challenge a will:

  • An eligible person has an obligation to notify the Executor of their intentions to challenge the will within 6 months from the date of death;
  • If the matter cannot be resolved through negotiations, then the eligible person must file and serve court proceedings on the Executor within 9 months from the date of death;
  • If the eligible person does not comply within those time limits, then they may be prevented from contesting the Estate without first obtaining the Court’s permission to institute legal proceedings, which is very difficult to obtain and only granted in exceptional circumstances.

We are offering a 10% discount on our professional fees for new clients during December 2018. Call us now on (07) 3278 1888 for a FREE no obligation quote and initial advice.

Executor’s Commission

Acting as an Executor / Personal Representative for a Deceased Estate is frequently involved and time consuming.

A lot of people don’t know that under section 68 of the Succession Act “the Court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit, and may attach such conditions to the payment thereof as it thinks fit.”

It is possible when preparing a Will to make an allowance for the Executor(s) to be paid commission as a percentage of the capital and income of the Estate. However, in our experience it is not common for an Executor’s commission clause to be included.

This does not mean that you as an Executor of the Estate will not be entitled to Executor’s commission, but it does mean that you either need the consent of any other Executors and the Beneficiaries or to apply to the Supreme Court for the Court to determine if you are entitled to commission and, if so, how much as a percentage of the capital and / or income of the Estate.

The potential amount which you could receive for Executor’s commission is calculated based upon your “pain and trouble”. There have been a number of cases where Executor’s have applied for Executors commission and where it has been found that they are entitled to the commission. The percentage amount has varied from as little as 1.5% on the capital of the Estate to 5% on the income of the Estate.

If an agreement can be reached about the payment of Executor’s commission this can be finalised by a Deed which all Executors and Beneficiaries sign to confirm that they agree to you receiving Executor’s commission from the Estate.

It can be beneficial to the Estate to consider and agree on a proposal for you to be paid Executor’s commission from the income and capital of the Estate because the costs of an application by the Executors to the Supreme Court are significant and are likely to be recoverable from the Estate itself.

Once the Deed has been signed or an Order made by the Supreme Court, the payment of Executor’s commission will be made first before a partial or final distribution of the Estate occurs.

If you are acting as an Executor and wish to apply for Executor’s commission, Hogan Stanton Lawyers will consider the works you have undertaken as an Executor and provide you with advice as to your potential entitlements to commission. We can prepare a letter to the Executors and Beneficiaries setting out a proposal and, if an agreement is reached, prepare a Deed for the parties to sign.

Alternatively, if no agreement can be reached, we can prepare the application to the Supreme Court for an Order that you receive Executor’s commission for your role as an Executor.

Please note the payment of or an entitlement to Executor’s commission is not the same as being reimbursed for your expenses as an Executor, which you are entitled to provided you can produce evidence of payment of those expenses.