Administering Deceased Estates: What is the six-month rule?
Following the death of an individual, their estate (assets, possessions and property) needs to be managed and dealt with.
The executor is the person who may accept the responsibility of managing the estate and carrying out the wishes of the deceased individual.
There may be one or multiple executors, and they may be named in the deceased’s Will or, if there is no Will or no appointment made, then a court-appointed administrator may take on the responsibilities of an executor. Expenses incurred by the executor in the course of administration may be covered and reimbursed by the estate.
Part of the executor’s role include:
- applying for probate
- arranging the funeral
- collecting and valuing the deceased’s assets
- repaying debts, including any tax liability, owed by the deceased
Another key role of the executor is to ensure the estate is distributed in accordance with deceased’s wishes, as stated in their Will. In order to deal with and distribute the estate, the executor must apply for and receive a grant of probate from the Supreme Court.
What is the six-month rule for making claims against the estate?
Once probate has been granted, the executor is able to distribute the remainder of the estate (once liabilities and debts have been accounted for) amongst the beneficiaries of the Will.
Claims can also be made against the deceased’s estate. According to section 99 of the Administration and Probate Act 1958 (Vic), any claims against the estate or contests of the Will must be made within the six-month period following the date probate is granted. This is commonly referred to as ‘the six-month rule’.
During this six-month period, the executor may continue to deal with the estate, as per their role. However, it is important to note the potential legal risks they may be exposed to.
What risks are associated with early distribution?
Depending on the size and complexity of the estate, the time frame for distribution will vary. It can take around two to three months to gather and prepare the documentation and materials required to apply for probate. The executor may feel pressure to distribute the estate during the six-month period following the grant of probate if beneficiaries of the Will expect payment of their entitlements to be made immediately or quickly.
However, if the estate has been distributed early (i.e. during the six-month period) and a claim against the estate is made and is successful, the executor may be personally liable for any deficit in the estate. The executor may have difficulty getting funds back from beneficiaries once the funds have been distributed.
Due to the operation of the six-month rule, it would be prudent for executors to proceed with caution and not fully distribute estates within six-months from the grant of probate.
What should you do if you are named as an executor?
An executor should seek legal advice to help with:
- Understanding their role as the executor
- Performing their duties
- Dealing with any complexities associated with the estate
If you are nominated as the executor of a Will and thinking of accepting the role, to make sure you understand your responsibilities and other potential risks, please contact me at our office on (03) 9480 1155.
Grant has been a partner at Phillips & Wilkins since 1990 having joined the firm in 1983. He is a member of the Law Institute of Victoria Elder Law Committee. Learn more about Grant's legal experience.