How is the estate of a deceased individual administered and who is responsible for collecting in assets, paying debts, and distributing to beneficiaries?
A person becomes an heir or legatee upon the acceptance of succession. Prior to the acceptance of succession, the person entitled to inherit assets may administer the estate and bring possessory actions for its preservation.
The appointment of an administrator is not mandatory. The testator may assign one or more legally capable persons to act as administrators.
At the request of any interested party the district judge for the place where succession is opened may set a time limit for the assignee to accept the appointment. If the time limit expires and the assignee has not accepted the appointment, the assignee is deemed to have waived acceptance.
The heir obtains the right to acquire its share with the opening of the succession. The acceptance of the inheritance requi
res the consent of the respective heir which may be explicitly or implicitly expressed.
The succession may be accepted as a whole or subject to inventory, which limits the liability to the obtained rights otherwise the heirs are liable to the creditors of the testator. The acceptance subject to inventory must be declared in written form to the district court within three months after the succession became known to the heir.
The heirs can also waive the succession, in which case the next ranking of heirs can step up and accept it. In case all rankings of heirs waive the acceptance, the state shall be entitled to receive the succession estate.
The administration of an estate depends upon whether the deceased died testate or intestate.
Where he / she died testate, the executors appointed under the Will are responsible for applying to the Probate Office to extract a Grant of Probate, which confirms the validity of the Will and the authority of the executors to deal with the estate. Once the Grant of Probate has issued, the executors are responsible for collecting in the assets of the deceased’s estate, paying the just debts and expenses of the estate, and distributing the assets in accordance with the Will.
Where the deceased’s spouse has been left less than his or her legal right share under the terms of the will, it is the executor’s duty to notify that spouse of his or her right of election as to whether to take under the will, or claim the legal right share.
Where a person dies intestate, the person or persons entitled to the estate pursuant to the rules of intestacy, or any one of a number of equally entitled, may apply to the High Court for letters of administration, authorising that person or those persons to administer the estate according to the rules of intestacy.
Where the personal representatives are not resident in Ireland, or some of the beneficiaries are not Irish resident, they are required to appoint an Irish solicitor as their agent to obtain a Grant of Representation.
The estate of a deceased individual is administered through a process known as probate. Probate is a court-supervised process through which a decedent’s assets are collected, debts are paid, and remaining property is distributed to beneficiaries according to the terms of the decedent’s Will, or, if the decedent died without a Will, according to the intestacy statute of the state or states in which probate occurs. A court-appointed individual, called an executor or administrator or personal representative, is responsible for administering the decedent’s estate. Typically, a decedent’s Will names the executor, while an administrator is chosen by the court where no Will exists or where no executor is named in the Will.
Probate occurs in the state where the decedent was domiciled at death, as well as in any states in which the decedent owned real or tangible personal property. Generally, the law of the state where the decedent was domiciled at death governs the disposition of intangible property. The disposition of real or tangible personal property, however, is governed by the law of the state in which such property is located. Where such property is located in multiple states, ancillary probate may be required.
Even if heirs inherit the deceased’s assets immediately on death without probate, French “notaires” are responsible for collecting assets, paying debts and preparing the “acte de notoriété” which identifies the persons who are entitled to inherit. Heirs can choose to remain co-owners or to allocate the assets between them.
The filing of the inheritance tax return as well as the payment of inheritance tax is the responsibility of the heirs.
The trustees may also be responsible for the payment of inheritance tax when the trust’s assets are not reported in the inheritance tax established by the heirs.
The party to succeed, either by law or by will, can either accept (expressly or implicitly) or renounce the estate. In the meantime, unless the deceased has appointed one or more executors by will, he/she is also entitled to administer the estate (if he/she does not, an administrator may be appointed by the court). The renunciation and the acceptance of the estate are retroactive as from the death of the deceased from both a civil and tax law perspective. The party to succeed can accept the estate with or without the benefit of the inventory. In the former case, the heir is liable for the debts inherited (and for the legacies) up to the value of the inherited assets.
In Israel an estate can be administrated by the heirs or by an executor. There is no mandatory requirement to appoint an executor and if such appointment is required an application to the Family court or the Registrar of Inheritance for the appointment of an executor should be made.
Inheritors are individually in charge for administering their inherited portion in regards to collecting estate’s assets and paying estate’s debts on a pro rata basis [in accordance to their portion].
The testator may also appoint Executors to administer, on behalf of the inheritors, the estate including any business operations, collection of claims and distributions to beneficiaries.
Furthermore, the testator may set up an “inheritance trust” which should not be confused with trusts’ structures originating from the Anglo-Saxon model.
The Greek “inheritance trust” allows for a segment -or all- of the estate to be inherited by one individual [the inheritor] and thereafter -either at a certain moment in time or following a predetermined event- be passed on to the ultimate beneficiary-individual, the so-called “trustee”.
The Greek law “inheritance trust”, as such, serves the sole purpose of transferring certain property from the inheritor to the ultimate beneficiary-trustee, following which it seizes to exist.
In the absence of an executor (see below), the estate is administered by the heir or the community of heirs (“Erbengemeinschaft”), if there is more than one. In this case the heir(s) are responsible for all actions mentioned above.
If an executor has been appointed by the testator, all rights and duties concerning the estate are exercised by him. There are only few exceptions.
The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).
If a testamentary executor is appointed in a will, he must ensure that the wishes of the deceased are executed. However, his rights are limited: in principle he does not have ‘saisine’, and cannot liquidate, nor divide the estate.
British Virgin Islands
The estate will be administered by the deceased’s personal representatives who will be responsible for collecting in assets, paying debts and distributing property to that person’s heirs. The personal representatives will be the person’s executors if he or she has left a Will containing a valid appointment of executors who are willing and able to apply for grant of probate or, if not, his or her administrators (whose identity will be determined by the law). The latter would need to obtain a BVI grant of letters of administration before they proceed with the estate’s administration. The procedure for applying for a grant is set out in the Eastern Caribbean Supreme Court (Non-Contentious) Probate Rules 2017.
Where an individual passes away in Dubai having implemented a valid DIFC Will, or local Will under the new law, a Grant of Probate will be issued by the DIFC Courts in accordance with the requirements under the DIFC WPR rules.
Where an individual passes away in Dubai, without a Will, the estate will be administered by the local courts, in accordance with Shari’a law principles.
On the death of the testator, the Will must be proved by way of probate in the High Court. Generally, any claims made as to the validity of the Will or as to inadequate provision for family members must be made within six months of the Will being submitted to probate. Wills may dispose of all types of property capable of ownership, including overseas property. Wills commonly set up trusts which can operate for up to 80 years.
A Will can appoint a statutory trust company, or any person resident in or out of New Zealand as executor and trustee. The executor and trustee will be responsible for collecting assets, paying debts, and distributing to the beneficiaries.
Generally, the heirs have the right to administer the deceased’s estate. The heirs, unless they renounce the estate, are obliged to pay the debts and charges of the estate as well as any bequests made by the testator.
The testator may also appoint one or more testamentary executors.
In case of a Will trust established under Law 214, it is accepted that the executors and the trustees have the right to administer the estate.
A judicial administrator may be appointed by the court when the estate has not yet been accepted by the beneficiaries.
If the deceased appointed an executor, the executor has sole possession of the assets of the estate and has extensive powers to manage and maintain them (he is competent to establish, collect and distribute the estate's assets). However, the ownership of the assets remains with the heirs.
If the deceased did not appoint an executor, the heirs are jointly responsible for the administration and distribution of the estate. The heirs can apply for the appointment of a public estate administrator, or the competent authorities can appoint such an administrator if they deem it to be necessary to safeguard the estate and its correct distribution.
17.1 The responsibility of administering the estate of a deceased individual falls on the personal representatives of the deceased. Where the deceased died having made a valid Will appointing executors, the personal representatives are those executors, who have the right to apply for a grant of probate, which will give them the right to deal with the deceased's assets. Where the deceased did not validly appoint executors who are able and willing to act, the personal representatives are the administrators, who are appointed under the intestacy rules (§16.2). Broadly, individuals who have an entitlement under the intestacy rules to assets of the deceased's estate have the right to apply for letters of administration, by which they will become administrators and gain the right to deal with the assets of the estate.
17.2 Where the deceased has left a valid Will governing the devolution of his estate, the personal representatives (§17.1) must distribute the assets of the estate in accordance with the terms of the Will. To the extent that the intestacy rules (§16.2) apply, the personal representatives must distribute the assets of the estate in accordance with those rules.
17.3 The administration of an estate proceeds broadly as follows. The personal representatives (§17.1) collect in the assets of the estate, pay all the debts and liabilities (including taxes), and then distribute the assets in accordance with the Will or intestacy rules (§16.2) (as applicable).
17.4 Personal liability of personal representatives (§17.1) is generally limited to the net value of the assets of the estate.