I have been waiting ages for my share of the estate.  How long does an executor have to settle an estate in Australia?

The law does not fix a determinate time by which an executor of a deceased estate must distribute the estate to the beneficiaries, failing which the executor will be in breach of his or her duty and face damages or penalties.

There is however a general principle under the common law that the executor ought to complete the administration of the estate within a year of the deceased’s death. This is referred to as the “executor’s year”. It is not a hard and fast rule. If the executor has taken more than a year to distribute the estate, the question is whether the executor has unreasonably delayed the administration of the estate. To determine this, all the circumstances of the case must be considered.

The executor’s year is a guide with the overriding principle being that the executor must not have caused unwarranted delay in the administration of the deceased’s estate.

Before an estate can be distributed, there are many steps for the executor to take which will impact on the time required to complete the administration of the estate, including the following: –

• Issuance of the death certificate;
• Obtaining the original will of deceased.
• Determining the nature and value of the assets and liabilities of the deceased.
• Applying to the Supreme Court for the Grant of Probate to be issued.
• Once probate has been issued, the executor has the power to collect the assets of the deceased such as bank deposits, the refundable accommodation deposit (if the deceased was in aged care) )and investments. The executor also has the power to sell property, stocks and shares and any other asset of the deceased.
• When the deceased’s assets have been collected, the executor must pay the creditors of the estate such as funeral expenses, outstanding loans, and other debts of the deceased.
• Tax returns must be prepared and filed with the Australian Taxation Office relating to the deceased and the estate and such taxes, if any must be paid.
• It may also be prudent to place a notice in the newspapers advising of the death of the deceased and calling for creditors to lodge their claims with the executor within 28 days. This time period must be completed to determine whether there are any debts to be paid.
• The executor is then in a position to commence distribution of the estate to the beneficiaries.

Does an executor have to wait 6 months after probate to distribute the estate?

Before proceeding to distribute the assets to the beneficiaries, the executor in Western Australia should also wait for at least 6 months from the date of the grant of the probate to see whether there are any family provision claims against the estate.  In Western Australia, under the Family Provision Act 1972, certain family members of the deceased have a right to make a claim against the estate if they have not been properly and adequately provided by the deceased under the will.   The law provides a period of 6 months from the date of the issuance of the probate for such a claim to be made.  A claimant can also make a claim after this 6-month period if the court finds that the claimant will suffer hardship if the claimant is not granted an extension of time to make the claim.  Other states and territories in Australia have similar family provision legislation with the time for such claims to be made varying from 6 months to 1 year.

If there is a family provision claim, it may be months or years for this claim to be resolved in order for the executor to be in a position to distribute the estate to the beneficiaries.

How long after probate has been issued can funds be distributed in Australia?

In a non-complex estate, where there are no issues with obtaining probate and all assets are easily accessible such as bank deposits and with no potential family provision claims, the administration of the estate can be wrapped up within 6 to 12 months. However, in an estate where there are issues related to the validity or interpretation of the will or where the assets have to be sold which are subject to market forces or where there are potential family provision claims against the estate, a reasonable time required to complete the administration of the estate may be 1 to 2 years or longer.

If you are an executor and need assistance to ensure the timely and orderly administration of the estate or if you are a beneficiary and believe that the executor has unreasonably delayed in the distribution of the estate to you, contact Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiry@robertsonhayles.com for legal assistance.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.