Legally Speaking: Explaining the duties of executors and administrators
An executor is appointed by Will, and is the person who administers a deceased’s estate.
An administrator is the person prescribed by law as having priority to administer the estate of an intestate, a person who dies without a Will.
Both an executor and administrator are responsible for obtaining the Grant from the Supreme Court, paying the deceased’s estate stamp duty and other liabilities, and then distributing the net estate to the beneficiaries, either according to the terms of the Will or, if there is no Will, according to the provisions of the Succession Act.
Identifying appropriate executors when making your Will is one of the most important decisions you face and you should consider such appointments with the utmost care.
You can appoint a maximum of four executors in your Will and it is advisable to appoint at least two individuals and, if more than two, to authorise them to act by majority.
Your executor should be over 18 years old, in good health, financially responsible and preferably reside in Bermuda, although this is not legally required. It is usually sensible to appoint your spouse or another family member, a trusted friend, or a professional person. Those appointed should preferably be younger than you.
An executor can be a beneficiary of your Will your spouse and children, for example. Family friends or professional advisors have the advantage of knowing you and your wishes and how to treat your family members when settling your estate. Family members and friends most likely will not charge fees for acting as your executor, but professional persons and companies most likely will do so.
It is always open to non-professional family members and friends to instruct a lawyer to handle the legal side of settling your estate, so there is no disadvantage to appointing non-professionals as long as they are responsible and sensible.
The differences between executors and administrators emanate from the distinction in law that the executor derives title directly from the Will, whereas the Grant by the Supreme Court provides the only title of the administrator where there is no Will.
Another important legal distinction is that when a person dies without having appointed an executor, the title to his real and personal estate rests with the Registrar of the Supreme Court until administration is granted, whereas the named executor under a Will takes title to all of the estate’s property immediately upon the death of the testator (the person making the Will).
Before proceeding to settle an estate, the executors or administrators should ensure that they are fully aware of all liabilities. Creditors can make claims at any time within six years after the deceased incurs the debt.
Where executors or administrators are not absolutely certain that they are fully aware of all estate debts or liabilities, they should avail themselves of the protection granted by Section 53 of the Administration of Estates Act. This requires the publication of a legal notice in the Official Gazette three times at intervals of not less than one week, requiring persons with claims to forward them to the executor or administrator within one month from the date of publication of the last notice. The total period of time amounts to at least six weeks, but can take longer depending upon when the three notices are actually published.
After this legal notice has been published, the estate can be distributed having regard only to those claims made within the required notice period. Any persons not giving notice of their claims within the requisite period are thereafter barred from making any claim against the executor or administrator. The claimant is not, however, barred from “following” or “tracing” the estate’s property to the persons who have received them, other than a purchaser.
Notwithstanding the publication of a Section 53 Notice, the executor or administrator is not free from the obligation to make searches that a reasonable person would make nor can he ignore claims known to him, even where he was not notified of them in answer to the legal notice.
Where there is a Will, a Grant of Probate so long as it remains unrevoked is conclusive evidence of the Will and its validity. Every person making or permitting to be made any payment or disposition in good faith under a Grant of Probate or Letters of Administration (where there is no Will) is protected by statute, notwithstanding any defect or circumstance whatsoever affecting the validity of the Grant.
Even where the Court revokes a Grant, all payments and dispositions made in good faith (whether made to or by an estate representative) under the Grant before the revocation are valid.
Lawyer Michael J Mello QC is Counsel with the Private Client and Trusts Practice Group at Appleby (Bermuda) Limited. A copy of Mr Mello’s column can be obtained on the Appleby website at www.applebyglobal.com.
This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.