The Law Handbook 2024

908 Section 9: Health, wills and other legal issues affecting older people should be placed in the legal notices advertisement pages of a daily newspaper. Where the assets of the estate are more than $2,000 the advertisement should also appear in the Government Gazette (s 33 Trustee Act). The following is the form of the notice, which is set out in schedule 2 of the Trustee Act: EXAMPLE [Insert name, address and occupation of deceased] Creditors next of kin and all others having claims in respect of the deceased who died on the [date of death] are required by the legal personal representatives of the estate [names and addresses] to send particulars of such claims to the said legal personal representatives by [date] after which date the legal personal representatives may distribute the assets, having regard only to the claims of which they then have notice. This notice cannot operate to exclude any legitimate claim by a creditor, but it protects an LPR distributing the estate in good faith without notice of a claim and any genuine purchaser of estate property. If claimants come forward as a result of the advertisement, the executor must either pay the debt if it is payable or, if disputed, the creditor must be notified to take proceedings to claim the debt from the estate within three months (s 30 A&P Act). If no proceeding is issued within three months, the executor must go to the Supreme Court and obtain an order barring the claim. Once the debts are paid, the executor must carry out the terms of the will and distribute the estate to the beneficiaries. Specific bequests, such as furniture, jewellery and pictures, are to be handed to the legatees and cash distributions paid (sometimes following the sale of assets). Unless the will contains a specific power to sell, the deceased’s estate cannot be sold by the trustees but must be transferred to the beneficiary entitled under the will. Where a beneficiary is a minor (under 18 years old) the bequest must be held until the beneficiary reaches 18. There are, however, certain circumstances when amounts may properly be paid to the parents or guardians of a minor for that person’s maintenance and general benefit. This depends on the wording of the will. Section 37 of the Trustee Act allows the executor to pay or apply all the income of an infant’s share for that person’s benefit while the infant is under 18 years old. Section 38 of the Trustee Act also allows the advancement of up to half the capital of an infant’s share for the infant’s benefit. The executor should consider the likelihood of any person making an application for provision out of the estate under Part IV of the A&P Act. These claims must be brought within six months of the grant of probate or administration. If there is any prospect of a claim being made, the estate should not be distributed until just after the six-month limitation period for such claims has expired, as the executor will be personally liable to a successful claimant if the estate is distributed before the limitation period has expired. Legal actions after death and insolvent estates Survival of legal actions of deceased Legal actions by and against the deceased (with some exceptions, such as for payments of maintenance to an ex-wife and children, and obligations that can only be carried out personally by the deceased) continue after the death of the deceased (s 29 A&P Act). Insolvent estates If the deceased had more debts than assets, it is necessary to deal with the estate in a different way from that which operates where the deceased died financially solvent. Section 39 of the A&P Act sets out which assets of an estate must be used first in payment of insolvent estate debts. This is particularly so when the deceased has considerable debts but also has property out of which those debts could be paid. In these circumstances, the estate is made insolvent. If the estate is administered by a trustee in bankruptcy, it is administered in accordance with the bankruptcy rules under the Bankruptcy Act 1966 (Cth) and the executor or person granted letters of administration does not take part in the administration of the estate. However, life policies of the deceased are exempted from the bankruptcy (ss 204, 205 Life Insurance Act 1995 (Cth)) as are superannuation benefits (s 249 Bankruptcy Act 1966 (Cth)). Section 39A of the A&P Act sets out in what order assets of a solvent estate must be applied to meet solvent estate debts.