Deceased estate and probate law

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Finding a will

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The obvious places to look for a will of a deceased person are at the deceased’s home (perhaps in a safe, a filing cabinet, in the deceased’s office or in a folder of important documents), with the deceased’s solicitor (particularly the solicitor whom drafted the will which is often shown on the cover page of the will), at the Public Trustee’s Will Bank, with the deceased’s accountant, with the executor of the will (including say, where the executor is a trustee company such as Perpetual Trustees or Plan B) or at the Deceased’s bank in safe keeping (e.g. a safety deposit box or packet). If the original will cannot be found the presumption of destruction (that the testator destroyed the will with the intention of revoking it) may prevail. Amongst other things you may consider placing an advertisement for a lost will in Brief (the solicitors magazine) .


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Executors Commission

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A will may make provision for an executor to be paid commission.

Further, application may be made for executors commission to be paid pursuant to section 98 of the Trustees Act.

The amount of that commission shall not exceed 5% of the gross value of the trust property (section 98(2) Trustees Act) however in practice the amount of commission awarded may be much less.

The Trustees Act also provides for the payment of professional or business charges to professional or business trustees in certain circumstances (see section 98(5) Trustees Act).

Consideration should be given by an executor to them passing accounts for the estate at the Supreme Court of Western Australia before an application for executor’s commission is made.

Executors will not ordinarily be allowed commission unless their conduct is free from suspicion and there has been no neglect on their part which has prejudiced the estate unless the breach of trust is trivial (In the Will of Sherringham (1901) 1 SR (NSW) (B and P) 48 and Wheeler and Another and Hegarty and Others S Crt of WA Library no 940437.

(Valid 4/7/12)


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Passing Estate Accounts

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Rule 37 of the Non-Contentious Probate Rules and sections 43 and 44 of the Administration Act are the main legislative provisions that concern the passing of accounts for an estate.

Executors rarely lodge their accounts at the Probate Division of the Supreme Court of Western Australia however some may chose to do so, say to take advantage of the release provided to them by section 43(1)(2) of the Administration Act after 3 years have passed (except in the case of wilful or fraudulent error or omission or entry).

Persons with a sufficient interest in the estate (e.g. a residual beneficiary) may ask the court (ordinarily by letter) to require an Executor to pass accounts.

If this occurs ojections by those with a sufficient interest may be made and evidence may be lead at a hearing of the matter.

The court may then allow or disallow various charges.

If wilful default by an executor is to be alleged contentious proceedings should be considered as this will empower the court:

1. not only to examine what has been received but also what would have been received had the executor or trustee discharged his or her duties properly and

2. to make orders for an executor to replenish funds wrongly depleted and to make restitution (Glazier v Australian Mens Health (No 2) [2001] NSWSC 6 [39] – [42], Bassett v Atheley [2011] WASC 117).

(Valid 4/7/12)


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