Accepting a role as a legal personal representative of an estate (ie an executor or administrator, ‘LPR’) can be a daunting task, particularly given the risk of personal liability that goes with it.
A key starting point to navigating the role as LPR is being aware of the timeframes which apply when administering a deceased estate.
Many of the key timeframes are outlined here, and include the following:
Notice of intention – 14 days before application for grant of representation
Before an LPR can make application for a grant of representation, they must advertise their notice of intention to do so, on the Supreme Court website1.
Where there is a valid will, this notice must include the LPR’s name and address, the date of the will to be probated and the names of the persons identified as executors in the Will.
This allows third parties a period in which to object to a grant of representation, which (in the context of a grant of probate) is typically done when somebody believes that the Will is not valid or there is a more recent Will.
Once the 14-day period has lapsed, the LPR can file their application for a grant of representation.
In urgent matters (for instance, where a grant of representation is required to settle real estate), an LPR can be appointed without having to advertise a notice of intention, but this requires an application to the Supreme Court.
Executor’s year – 12 months from date of death
The ‘executor’s year’ refers to the period of time that an LPR is afforded to administer an estate, without being compelled to make any distributions to beneficiaries. The principle is grounded in case law and legislation2.
However, an LPR should be aware that the principle does not mean:
- the administration must be complete after 12 months. Whilst 12 months is often a sufficient period in which to administer a straightforward estate, there are many reasons why an estate may take longer to finalise (including disputes or complexity).
- no distributions can occur within 12 months. There is often good reason to distribute an estate within 12 months from the date of death, particularly where the limitation period for a family provision claim has expired.
Ultimately, the LPR must always ensure that they are acting promptly in the ‘due administration’ of the estate, regardless of the time period since death.
Limitation period for family provision claims – 6 months from the grant of representation
In Victoria, an eligible person may claim further provision from an estate in circumstances where they believe that they have not been left adequate provision for their proper maintenance and support.
This claim must be made within 6 months of the grant of representation.
For this reason, LPR’s are advised not to distribute an estate within this period of time. If they do, and a successful claim is made, the LPR may be held liable if insufficient assets in the estate remain to meet the claim.
A family provision claim can also be made outside the 6 month limitation period in certain circumstances but only where assets in the estate remain at that time. It is therefore prudent for an LPR, where feasible, to distribute an estate as soon as possible after the 6 month limitation period lapses, particularly where a potential claim exists.
Interest on a pecuniary legacy – 12 months from death
A gift of money in a will (called a pecuniary legacy) starts to attract interest3 if it has not been paid within one year after the testator dies.
Accordingly, an LPR should, where possible, seek to make payment of pecuniary legacies within this period of time, to prevent interest accruing.
How we can help
Planning is key when administering a deceased estate and knowing what timeframes apply is crucial to limiting the risk of liability. Our team of deceased estates legal experts can help you if you have any queries navigating these timeframes.
Contact us
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
1Rule 2.03 of the Supreme Court (Administration and Probate) Rules 2014).
2Section 49 of the Administration and Probate Act.
3At the ‘legacy interest rate’ which is the rate that lies 2 per cent above the cash rate last published by the Reserve Bank of Australia: s39B(3) of the Administration and Probate Act 1958 (Vic)