I was asked the other day about what happens in the instance that an executor named in a Will cannot be found. You might think that this wouldn’t cause a problem but the executor has to:
Notify all beneficiaries;
Manage the property or goods left in the will;
Value the estate;
Complete income tax returns;
Apply for a grant of probate;
Pay all debts and liabilities;
and then Divide the estate.
Barry Mathews died at Iron Knob South Australia in June 2010. Barry’s estate was valued at around $46,000.00.
Following Barry’s death, his friend John Davidson located an original will that had been prepared using a Will kit and executed in January 2002.
If you have seen a Will Kit it comprises an instruction booklet and pre completed forms that allow the person making the Will to write the names of executors in the spaces provided. Barry completed the section as follows:
- Appointment of a Personal Representative (Executor/Executrix):
I appoint My Cousin Heather Manfield Personal Representative hereunder and if he/she shall not act for any reason, then I appoint as alternate Personal Representative John Davidson of Leigh Creek to act hereunder.
The will kit booklet provided the following details about Heather Manfield:
PERSONAL REPRESENTATIVE
Name HEATHER MANFIELD
Address Roadside Delivery Penola Postcode Phone ( )
John searched Barry’s papers and made inquiries as to the whereabouts of Heather Manfield; he could not locate her. John then instructed a solicitor to conduct searches for her whereabouts.
Property searches revealed that no one with the name “Heather Manfield” was listed as a registered proprietor of real estate in South Australia. Searches of the electoral roll revealed a “Heather Joy Manfield”; when contacted she informed the solicitor that she was not Barry’s cousin and was unaware of anyone else residing in South Australia with the name “Heather Manfield”.
A search of the register of Births, Deaths and Marriages found no record of death of a person named Heather Manfield within the last 10 years..
In April 2011, the Penola Post Office was contacted but had no record of the whereabouts of Heather Manfield. Similarly the two persons who witnessed Barry’s will had no knowledge of the existence or location of Heather Manfield.
John asked the court to make an order passing over Heather Manfield as executor as she was missing and is therefore unable to take up the administration of the estate, and granting probate to him. The Court agreed having regard to the estate’s due and proper administration and its beneficiaries.
Barry like many of us had created a Will but had not got around to updating it when his circumstances had changed. Although his estate wasn’t large the fact that John had to go to the trouble and expense of trying to locate an executor would have reduced the amount that was available to pay beneficiaries.