Duties of a Personal Representative Under the Estate Administration Act

Leslie Taylor

The duties of a personal representative are far reaching, as prescribed by the Estate Administration Act, SA 2014, c E-12.5:

General duties of a personal representative

5(1) A personal representative must

1. perform the role of personal representative
   1. honestly and in good faith,
   2. in accordance with the testator’s intentions and with the will, if a valid will exists, and
   3. with the care, diligence and skill that a person of ordinary prudence would exercise in comparable circumstances where a fiduciary relationship exists,

and

2. distribute the estate as soon as practicable.

Core tasks

7(1) The core tasks of a personal representative when administering an estate are

1. to identify the estate assets and liabilities,
2. to administer and manage the estate,
3. to satisfy the debts and obligations of the estate, and
4. to distribute and account for the administration of the estate.

(2) The core tasks referred to in subsection (1) may include, but are not limited to, the activities set out in the Schedule.

Schedule – Core Tasks

This Schedule provides examples of activities that may be included in the core tasks referred to in section 7(1).

1 Identifying the estate assets and liabilities may include, but is not limited to,

1. arranging with a bank, trust company or other financial institution for a list of the contents of a safety deposit box,
2. determining the full nature and value of property and debts of the deceased person as on the date of death and compiling a list, including the value of all land and buildings, a summary of outstanding mortgages, leases and other encumbrances, and online accounts, and
3. applying for any pensions, annuities, death benefits, life insurance or other benefits payable to the estate.

2 Administering and managing the estate may include, but is not limited to,

1. creating and maintaining records,
2. regularly communicating with beneficiaries concerning the administration and management of the estate,
3. examining existing insurance policies, advising insurance companies of the death and placing additional insurance, if necessary,
4. protecting or securing the safety of the estate property,
5. providing for the protection and supervision of vacant land and buildings,
6. arranging for the proper management of the estate property, including continuing business operations, taking control of property and selling property,
7. retaining a lawyer to advise about the administration of the estate,
8. applying for a grant in accordance with this Act or applying to bring any matter or question before the Court if appropriate or necessary for the administration of the estate,
9. commencing or defending a claim on behalf of the estate,
10. preparing and providing financial statements, and
11. performing any other duties required by law.

3 Satisfying debts and obligations of the estate may include, but is not limited to,

1. determining the income tax or other tax liability of the deceased person and of the estate, filing the necessary returns, paying any tax owing and obtaining income tax or other tax certificates before distributing the estate property,
2. arranging for the payment of debts and expenses owed by the deceased person and the estate,
3. determining whether to advertise for claimants, checking all claims and making payments as funds become available, and
4. taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in issue.

4 Distributing and accounting for the administration of the estate may include, but is not limited to,

1. determining the names and addresses of those beneficially entitled to the estate property and notifying them of their interests,
2. informing any joint tenancy beneficiaries of the death of the deceased person,
3. informing any designated beneficiaries of their interests under life insurance or other property passing outside the will,
4. administering any continuing testamentary trusts or trusts for minors,
5. preparing the personal representative’s financial statements, a proposed compensation schedule and a proposed final distribution schedule, and
6. distributing the estate property in accordance with the will or intestate succession provisions.

The personal representatives duties are not to being taken lightly in that where a personal representative does not fulfill their duties, they risk being removed from their role, as follows:

Failure to provide notice or the non‑performance of duty or core task

8 If, on application, the Court is satisfied that a personal representative has refused or failed to provide the notice required under Part 2 or to perform a duty or core task for which the personal representative is responsible, the Court may

1. 1. order the personal representative to provide the notice or to perform the duty or core task;
   2. impose conditions on the personal representative;
   3. remove the personal representative;
   4. revoke a grant;
   5. make any other order that the Court considers appropriate.