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ROLE OF THE EXECUTOR/ADMINISTRATOR

In the last two articles we looked at different aspects relating to what happens and what should happen after a loved one dies. Today we will address our mind to the role an executor or administrator plays in this entire process. For definitions of certain terms please refer to the first article in this series

 

There is very little difference between an executor and an administrator. Their duties are essentially the same. The only difference is how they each come to undertake their roles after the death of someone. An executor is the person who is named under the Will of the dead person who is given responsibility for taking care of and distributing the estate of that dead person according to the wishes of that person. An administrator is named by the court to also take care of and distribute the estate of the dead person but in accordance with the law. Both roles are voluntary and no monetary fee is paid for carrying out the role of the executor/administrator.

 

The main responsibility of both the executor and the administrator is to gather together all the assets and liabilities of the deceased person and to distribute the estate to the heirs of the deceased. Some of these responsibilities would be:

 

• Applying for probate of the Will or letters of administration. This would include producing a copy or an original copy of the Will, gathering the birth certificates of the heirs and any marriage certificate, locating and identifying all property of the deceased.
• Locating and identifying the heirs whether named in the Will or identified under law.
• Making funeral arrangements.
• Identifying all the property of the deceased such as bank accounts, leasehold land (not custom land), etc as well as all debts.

 

Once the executor/administrator has identified all the property of the deceased along with any debts and has obtained a valuation he/she will have to ensure that all debts are paid off first such as:

 

• Funeral expenses
• Legal expenses
• Taxes
• Mortgages/rent
• Outstanding utility bills
• Any other debts

 

The first priority of the executor/administrator is to pay off debts. Sometimes, when debts are paid off there may be nothing left in the estate to give to the heirs.

 

Certain assets like land and cars may have to be sold first to pay off these debts and whatever is left over is distributed among the heirs. If an executor/administrator uses his/her own money to pay off debts of the deceased or incurs certain costs while administering the estate, such as paying to fly to Santo to deal with a part or all of the estate, then all those costs and expenses must be repaid to the executor/administrator from the estate and will be considered as a debt owed by the estate.

 

Everything to be done by the executor/administrator must be done as soon as possible after the death of the deceased. At least a year is usually considered enough time to fulfil all the functions of the executor/administrator. If the executor/administrator does not act as he/she should under the law and deal with all matter of the estate in a timely manner the heirs can file a complaint with the court. We will look at this in more detail in another article.

 

Under the law custom land is not dealt with by the court in inheritance matters as they  are strictly dealt with under custom law. In addition, first born sons or male members of the household or family of the deceased do not have a greater right than a wife, sister or other female member of the household or family to apply to the court for a grant of letters of administration.

 

An executor is free to inform the court, usually in a sworn statement that he/she does not wish to take on the responsibility of handling the estate.

 

One thing to keep in mind:Once a grant is made to an executor/administrator, ownership of the property of the deceased does not become the sole property of the executor/administrator as most persons in Vanuatu tend to think. While the executor/administrator, after the court grant is made becomes the one with legal title, he/she is ultimately accountable to the heirs and to the court for what he/she does with that property. There can be serious consequences if any executor/administrator takes that property for his own use.

 

If you have been appointed an executor/administrator you should make sure that immediately following the grant you go to the Land Registry and have the properties registered in your name as executor/administrator. You may also withdraw or transfer any monies from Banks but it is better to open a new account in your name as executor/administrator to place all the money from the Bank and any monies from the sale of property to make it easier when paying off the debts and distributing to the heirs.

 

 

DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.     

 

If you have any questions or require clarification on the above please contact the writers at vanuatulaw@gmail.comor contact us at website www.pawthelaw.info