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The Lawyer's Role in Deceased Estates

When someone dies, their assets are called their 'estate'. Lawyers play an important role in ensuring that their estate is distributed in accordance with their Will, assuming that they made one.

A Will generally names one or more people as the executor. The executor's role is to administer the estate, which commonly involves:

  • attending to the payment of the debts of the estate from the money in the estate, for example paying for the funeral, household bills etc;
  • looking after the assets of the estate (i.e. making sure the home of the person who died is properly maintained until it is transferred to the beneficiary under the Will); and
  • attending to the distribution of the estate assets in accordance with the terms of the Will (for example arranging for the transfer of the ownership of any real estate to the beneficiary named in the Will).

It is also common for a Will to name a trustee for the estate. A trustee is required where the Will provides for a person to receive a continuing benefit from the estate. The trustee's role is to manage the assets for the benefit of the beneficiary in accordance with the terms of the Will.

Normally it is the same person or persons who are appointed as both the executor and trustee in a Will. As outlined above, the functions of each are different. A trustee's duties do not normally commence until after the executor has discharged their duties.

It is not unusual for the executor of the Will to also be a beneficiary under the Will. It is important to note that a beneficiary who is not an executor of the estate does not have the power to make any decisions about the estate.

A lawyer plays an important role in the administration of an estate by assisting an executor to:

  • identify and collect the assets of the deceased;
  • prepare and apply for probate from the Supreme Court of Tasmania (probate is not always required but it is usually required where the estate contains things like property or large sums of money);
  • provide advice in relation to the legal order in which the debts of the estate are payable; and
  • provide advice as to how the assets of the estate which remain after all debts have been paid are to be distributed in accordance with the terms of the Will.

If someone dies without a will, a person who is entitled to a share in the estate can apply for 'letters of administration' and the estate is administered in accordance with the Intestacy Act 2010 (Tas). This act sets out the rules for determining the entitlements of remaining family in the distribution of the estate. A lawyer can assist in preparing the application for letters of administration and the distribution of the estate once the letters of administration have been granted.

When a lawyer is assisting in the administration of an estate, the Lawyer's client is the executor and the Lawyer has a professional duty to assist the executor to carry out their duties to the estate in accordance with the Will and the law. It is important to note that the beneficiaries are not the client and the lawyer has no duty to the beneficiary, their duty is to their client, being the executor.

A beneficiary who is unhappy with the manner in which the estate is being administered should raise this with the executor of the estate and not the lawyer, as the lawyer is generally unable to assist as the beneficiary is not their client. A beneficiary should raise any concerns with the executor of the estate. If they have serious concerns then the Supreme Court has the power to remove executors and appoint new ones if there are valid reasons for doing so.

To discuss how we can help in the administration of an estate, please contact us on 03 6332 9353.

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