One of the most common questions asked in relation to deceased
estates concerns when an executor can distribute the estate assets
Beneficiaries are, understandably, always eager to receive their
interest in the estate and executors are eager to finalise their
duties as quickly and efficiently as possible. Despite this often
mutual desire to distribute the estate quickly, there are several
requirements that must be met prior to any distribution.
Probate must be granted – probate is an order from the
court establishing the validity of the deceased's will. This
order allows the executor to legally administer the estate pursuant
to the terms of the will.
Notice of the distribution must be published – notice
must be posted on the Supreme Court website of the intent to
distribute the estate. This notice alerts possible creditors or
other interested parties that the executor intends to distribute
All assets of the estate must be collected – it is the
responsibility of the executor to ensure that all known assets of
the deceased are found, collected/sold and prepared for
All known debts of the deceased must be paid – sometimes
a deceased dies with debts. These debts (including funeral expenses
and tax debt) must be paid prior to distribution.
Once all of these requirements have been met, the executor is
technically free to distribute the estate.
Distribution has occurred; Now money is owed to a
But what happens if the executor distributes everything, leaving
no money in the estate, and a creditor or beneficiary or other
interested person comes forward claiming that the estate owes them
If the Executor has complied with certain requirements for
distribution of the estate, he/she will not face personal liability
for any claims made against the estate subsequent to distribution.
Those requirements are:
That the estate assets are distributed at least 6 months after
the deceased's date of death;
That the executor has published a 30 day notice of his/her
intent to distribute the estate; and
That the time specified in the notice has expired.
An additional issue to be taken into account by an executor when
considering when to distribute, concerns claims against the estate
by a relative or a dependent of the deceased, for provision. An
executor should be aware that potential claims for family provision
must be filed within 12 months of the date of death of the
deceased. An executor who distributes the estate prior to the
expiration of that 12 month period may be held personally liable if
he/she has distributed the estate knowing of a potential claim for
provision and there are no funds remaining to satisfy any
successful claim made within that period.
The timing of distribution by the executor in each case depends
on the facts of the case and an assessment of the particular risks
of a claim against the estate in each case.
An executor who distributes the estate early can be held
personally liable for shortfalls that result from early
distribution. As a general rule, if an executor wants to avoid
potential personal liability to a creditor, beneficiary or other
person, (other than in relation to a family provision claim) they
should delay distribution until the expiry of the later of the
expiry of the 30 day notice and the passage of six months from the
date of death. If an executor wants to avoid potential personal
liability to a claimant for family provision, then they should
delay distribution till the expiry of 12 months from the date of
Careful consideration of the possible risks and rewards of early
distribution of the estate must be made by the executor prior to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The WA Supreme Court has recently refused a plaintiff's application to extend the time to bring a claim against an estate.
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