The Law Handbook 2024

906 Section 9: Health, wills and other legal issues affecting older people additional interest charges (e.g. payment of rates on a property) while awaiting the grant of probate. To protect the estate, before probate is obtained, the executor is allowed to release and pay debts, receive money owing to the deceased and take possession of land, provided in all cases that they will eventually be able to satisfy the court of their title and power to administer the estate. The executor’s title to the estate assets is only made certain and final by the grant of probate. Problems with the executor Problems may arise with the administration of an estate. Some of these are discussed below. No executor appointed When there is no executor appointed in the will, or the executor has died or is divorced from the willmaker, the court usually grants the administration of the estate to the beneficiary with the greatest interest in the estate. This administrator then carries out the wishes of the deceased as expressed in the will. This procedure is called ‘letters of administration with the will annexed’. Executor does not wish to act A person appointed by the willmaker as executor does not have to accept this responsibility. If a person renounces their appointment under the will (i.e. refuses to act), another executor named in the will may assume the role if the wording of the will allows this. If there is no other executor named in the will, it will be treated in the same fashion as the will with no executor appointed discussed above, and letters of administration with the will annexed will be granted. Executor is dead Where a sole executor dies before the willmaker or before any steps have been taken to prove the will, letters of administration with the will annexed are granted. Where the last executor to obtain probate dies, the executor of that dead executor also becomes the executor for the deceased (s 17 A&P Act). To avoid these unsatisfactory situations it is advisable to appoint more than one executor. Otherwise, wills should be changed on the death of someone nominated as executor. Executor is a minor Where the sole executor is under 18 years of age, the court can appoint the minor’s guardian, or such other person as the court thinks fit, as executor until the minor reaches 18 (s 26 A&P Act). Trustees Normally a person is appointed as both executor and trustee. However, these are two different jobs. The executor’s role comes to an end when the assets have been realised, the debts paid and the balance of the estate is ready to be distributed to the beneficiaries. Where the terms of the will create a continuing duty, such as the support and maintenance of young children, this role is performed as trustee. Settled estates A beneficiary who does not receive any capital, but whose share is restricted to the income only, is said to have an interest in a settled estate. For example, the willmaker may have left the income from the estate to a spouse for their life, and after the spouse’s death, the capital to their children. The obligations of the trustee then are to invest the capital fund, to preserve the value of the investment for the children, and to pay the income to the spouse during their lifetime. The manner in which any such settled share is invested depends on the powers given by the deceased in the will. If these powers are not set out in the will, they are restricted to the investment powers for trusts set out in Part 1 of the Trustee Act. Where life interests in real estate are left in a will, the Settled Land Act 1958 (Vic) governs how the life interest is administered. Under this Act, the life tenant is given powers that override those set out in the will. The law in this area is very complex and professional advice should be taken both before putting such provisions in a will and where such a provision appears in a will being proved.