Powers and duties of the legal personal representative
1. Introductionan executor of another person's will;
A legal personal representative is a person who is:
the administrator of deceased person's estate;
the trustee of a legally disabled person's estate or affairs; or
a person who has been granted an enduring power of attorney over the affairs of another person.
In connection with wills, for example, the legal personal representative carries out the stated wishes of the deceased person. Usually the legal personal representative is someone known to the deceased; he or she may be a family member, a trusted family friend, or a solicitor. As the powers of a legal personal representative can be quite wide under the legislation or common law, there are corresponding duties that a legal personal representative must adhere to. In other words, with power comes responsibility.
It is the purpose of this article to examine the powers and duties of the legal personal representative in connection with an area of the law known as Wills, Probate, Estate Planning & Administration. The following is a general summary only. For specific legal advice tailored to your circumstances please contact a legal practitioner.
2. Powers of the legal personal representative
The powers of the legal personal representative are quite extensive and include (but are not limited to) the power to:
sell or mortgage the real estate of a deceased person for purposes of administering the estate;
administer the deceased person's estate eg. pay the deceased person's debts or funeral expenses;
distribute the proceeds of the sale of real estate to beneficiaries under a will (or to people otherwise entitled to a share of an estate);
lease the real estate of the deceased person (usually for a term not exceeding three years);
There is also provision for the legal personal representative to apply to the court for an extension to his or her powers. The court may grant the powers if it considers that they are necessary for the administration of an estate.
3. Duties of the legal personal representative
The duties of the legal personal representative include (but are not limited to):
burying or cremating the deceased;
keeping and filing accounts in connection with the estate;
collecting outstanding debts due to the estate;
reasonably investing the proceeds of an estate for the benefit of the beneficiaries;
discharging the debts of the deceased; and
distributing the assets of the estate to its beneficiaries.
There are a variety of other duties that a legal personal representative has. These may be found, for example, in the Trustee Act 1925 & 1957 (ACT), the Administration and Probate Act 1928 (ACT), and the Wills Act 1968 (ACT).
4. Legal personal representative is protected
The oftentimes complicated nature of Wills, Probate, Estate Planning & Administration means that the legal personal representative needs to be protected, especially against the claims of creditors of the estate.
Believe it or not the common law (judge made law developed originally in England) used to hold the legal personal representative liable for the estate's debts in various circumstances! Clearly this lays unduly onerous expectations upon a personal representative.
A personal representative is now protected by sections 64-66 of the Administration and Probate Act 1928 (ACT). In summary these sections protect the legal personal representative against the claims of beneficiaries and creditors, provided that the representative has given the appropriate statutory notice calling for such beneficiaries or creditors to make their interest or interests known.