Vince Barrett, Consultant, Bowring Macaulay & Barrett Solicitors
Ken Collins, Principal, Wills and Probate Victoria, Lawyers (Vic)
Caite Brewer, Callinan Chambers, Barrister and Angela Cornford-Scott, Director, Cornford-Scott Lawyers (Qld)
Morgan Solomon, Director Solomon Hollett Lawyers (WA)
Rosemary Caruso, Consultant, Tindall Gask Bentley Lawyers (SA)
Maria Dwyer and Christine Schokman, Senior Associates, Ogilvie Jennings Lawyers (Tas)
Andrew Freer, Director and Erin Bedford, Associate, KJB Law (ACT)
Administrator’s duties
It is preferable that a decision is made in relation to the appropriate administrator for an intestate estate, so that this person can assume the role of an administrator of an intestate estate as soon as possible following death. This is because one of the immediate duties of the administrator is to dispose of the body of the deceased. This would generally involve arranging a funeral and a burial or cremation.
There are some actions that the administrator should not take until a grant of administration has been made. The administrator should ensure that the actions he or she takes are required in the due course of administration and that they benefit the estate for which he or she is acting.
The duties of an administrator include preparing accounts, collecting assets, preserving assets, investing monies pending distribution, attending to payment of debts, attending to payment of testamentary expenses, attending to the distribution of assets and, if necessary, prosecuting and defending proceedings on behalf of the estate. In certain circumstances the administrator will need to carry on the business of the deceased until such time as it is transferred to a beneficiary, sold or wound up. An administrator needs to be careful when prosecuting or defending proceedings or carrying on a business as the administrator may incur personal liability.
Further, in the case of minor beneficiaries, an administrator can also end up as trustee of a trust for many years.
See Administrator’s duties.
Administrator’s liabilities
Unless the administrator has the right to be indemnified from the assets of the estate, where an administrator incurs debt on behalf of the estate he or she will be personally liable. In New South Wales, Victoria, Western Australia, South Australia, Tasmania and the Australian Capital Territory, rather than risk personal liability, the administrator may prefer to delegate his or her powers to the Public Trustee or Trustee Company.
An administrator who does not wish to be an administrator should renounce that role as early as possible and before “intermeddling” with the estate assets. If the administrator does not do this, or is unable to take action, then he or she needs to ensure that he/she protects himself/herself from liability as far as possible. For example by pleading common law defences available to the administrator where there are no assets or insufficient assets to meet the plaintiff's claim.
There are also statutory protections available for the administrator, which are discussed in Protection from liability.
See Administrator’s liabilities.