Ensuring Smooth Transitions: The Significance of selecting the right Personal Representatives

When it comes to carrying out your post-death wishes and instructions, your Personal Representatives play a crucial role. Therefore, it is important to understand what the role may involve.

What is a Personal Representatives

A Personal Representative is the umbrella term used to refer to Executors or Administrators and these are the individuals appointed to manage the deceased’s estate and distribute any assets in accordance with the deceased’s Will or the Succession Act if the deceased died intestate, i.e. without a Will.

How They Get Chosen

Personal Representatives are appointed By Will or in accordance with the Succession Act 1965. When drafting your Will you can choose one or more individuals to act as your Personal Representative. We would always advise clients to talk to their perspective Personal Representatives and confirm that they will be willing to act, given it can be an onerous job. Where an individual dies without a Will, the Succession Act 1965 sets out who a hierarchy of whom will be entitled to act as the Administrator.

Does a Personal Representative have to Act?

The short answer is, No. The Personal Representative can either accept, reserve or renounce (reject) their role. Where two or more Personal Representatives are appointed it is not uncommon for, one of them to take the lead and extract the Grant, while the other Personal Representatives reserve their right to do so.

Jobs and Duties

Personal Representatives primary function is to extract the relevant Grant from the Probate Office. The estate of the deceased passes to the Personal Representative on their death and their duties may include the following:

  1. Disposal of the body;
  2. Valuation or protection of any assets;
  3. Ascertaining any liabilities;
  4. Identifying and locating any perspective beneficiaries;
  5. Preparing a statement of affairs for Revenue and filing any required post death
    returns in behalf of the deceased;
  6. Collecting all of the assets of the deceased;
  7. Paying all of the expenses and debts of the estate;
  8. Obtaining tax clearance;
  9. Preparation of administration accounts.

The duties of the Personal Representative are for life. As can be seen from the broad extent of duties outlined above it is not a role to be undertaken lightly. A Personal Representative is not entitled to be paid for their time, nor can they delegate or derogate their responsibilities.

The Personal Representative is the individual who is responsible and accountable for and on behalf of the deceased and his/her estate. They must answer all queries raised by and address any challenges made by potential beneficiaries.

What Happens when an individual dies without a Will?

In this scenario the deceased is deemed to die intestate and the Section 71 of the Succession Act 1965 sets out who will be entitled to take out the Grant. The basic rule is that the interest in the estate (i.e. entitlement to inherit) is;

  1. Determined at the date of death and
  2. The grant follows the interest.

Order 79 Rule 5 of the Rules of the Superior Court sets out the order of priority of the individuals who are entitled.

Powers of the Personal Representatives

The Personal Representatives powers can arise by statute and/or by the Will itself. Their are extensive and need to be given the range of the duties imposed upon them. The challenges they may face while discharging their duties may not be easy, aside from the volume of work that required.

Challenges They Face

Being a Personal Representative is not easy. There are many challenges, especially when there’s no Will. They need to answer all Revenue and Probate queries, deal with any arguments between family members, and ensure that the deceased’s estate is properly managed and distributed in accordance with the Will and/or Succession Act 1965.

There are very strict Revenue filing deadlines and there can be considerable penalties and surcharges if these are missed. Knowing the law and your legal requirements as a Personal Representative is vital. A personal Representative is entitled to engage a Solicitor to assist and advise with the discharge of their duties. Getting good advice and guidance from an experienced Solicitor at the outset can avoid a lot of unnecessary headaches.

Choose Carefully

It is important that a person executing a Will should give considerable thought to whom they wish to appoint as their Personal Representative, as this person will, post death, be the responsible for all of the various duties outlined above. When choosing your Executor we would advise you consider the following points:

  1. Will the perspective Personal Representative have the capacity to act at the date
    of your death?
  2. The age of the Personal Representative. Are they over 18 or alternatively young
    enough to handle and deal with the work involved in discharging their duties?
  3. Considering appointing multiple Executors, particularly if your executors live
    outside the jurisdiction.
  4. Talk to your prospective Personal Representatives and confirm whether they
    would be willing to act.

For more information, read Personal Representative: An Overview. We encourage you to consult directly with our expert team for specific legal advice tailored to your unique situation.