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The completion of the circle of life by each of us is a natural progression of the journey we are all travelling here on Earth. The passing from this existence of life as we know it comes along with the practical task for the person appointed as Executor of The Estate of the deceased to manage the sale of assets like property.
Executor
The executor may be named in the will of the deceased or if there was no will left, then this role may be that of the next of kin. The duty of the executor is an important role whose activities have a bearing on the final outcome for the beneficiaries of the estate and this article aims to provide clarity on these duties to help make the process easy to understand and manage to ensure the interests of those concerned are met. It is the duty of the executor to ensure all the debts of the deceased are paid and that the assets are distributed according to the deceased persons wishes.
Beneficiaries
There are commonly several beneficiaries of the estate and the executor has a duty of care to the deceased and to the beneficiaries to ensure that the estate is wound up effectively. This duty of responsibility can often feel like a burden for the chosen executor due to pressure from the family of the deceased and other beneficiaries. There are some things that those involved can do to be of assistance to the task of selling and whilst the big decisions will be made by the executor, this person may request the input of other people to help the property sell. Depending on the property and its condition, a working bee to help get the property ready for sale may be a good way to bring the family together to work towards a mutual goal thereby commemorating the life of the deceased. There may be a task to remove personal items from the property or to undertake works to prepare for the sale such as cleaning, garden work or repairs and maintenance to bring to home to a presentable standard. The beneficiaries may however not be in a position to help due to incapacity or absence in which case professionals may be sought and paid for by the remaining funds in the estate of the deceased. Sometimes there may be disagreement between the parties involved on the type of works that should be undertaken so it is important to remember that the final say will be made by the executor(s).
Lawyers
A family lawyer will be needed to ensure the legalities of the estate and its winding up and distribution are taken care of in a proper manner. According to the Supreme Court of Australia, the executor or administrator must make sure any debts are paid and that any remaining assets are distributed according to the deceased's wishes (where there is a will) or the laws of intestacy (where there is no will). The lawyer will require a letter of appraisal of value from a real estate agent for the granting of probate.
What is probate?
According to law, grants of probate and letters of administration are collectively referred to as grants of representation. A grant of representation gives a person the legal right to administer the estate of a deceased person.Probate is a legal document that certifies that a will is valid and can be acted upon. Letters of administration are issued where the deceased has left no valid will.
Probate must have been granted by the probate office in order for the subject property to be transferred to the purchaser however often a sale process may be undertaken and a buyer located prior to this occurring. In this event a special condition is added to the contract of sale by the lawyer acting for the deceased and their executor. This is more common when the will is unlikely to be contested by a beneficiary or a prospective beneficiary.
Preparing for sale
Enlisting the help of a real estate professional early on in the process can help unite the family by having a single point of advice when it comes to the marketing and sale of the property. Without this professional advice, opinions can vary widely on the preparations needed causing needless stress for those involved. Each property is different and requires a different approach when it comes to the preparations for sale. Some properties may benefit from some improvements or renovations whereas others may be sold as-is. A competent agent will know the needs and requirements of the likely buyers as they are in frequent contact with them in their daily work so allow the agent to advise the executor on the steps that may be needed to get the property ready for sale. The agent will also be able to estimate the value of the property, the likely time frame for its sale and will be able to make recommendations on the marketing and sale method. These recommendations will be needed to ensure the full potential of the asset is realised for the benefit of the beneficiaries in the final outcome and to ensure the will of the deceased person is acted upon.
For all real estate advice and information contact the author Simon Wendt on 0407 040 706.
Simon Wendt
Licensed Estate Agent | Auctioneer
P: 0407 040 706 | swendt@hockingstuart.com.au