Who Makes Decisions on Behalf of the Deceased?
When someone dies, it sets a series of things into motion. If there is a Will to be followed, certain people will be named – such as the executor and the administrator. Ahead, learn more about their roles and what decisions they are responsible for.
Executor
In a Will, one or more people are named to carry out the deceased person’s instructions for distributing their estate; these are the executors. While only one must be named, some people opt to name multiple, who must work together to complete the task at hand.
Depending on the complexity of the estate, the executor is responsible for completing administrative tasks (some examples include locating the Will, obtaining a grant of probate and locating the assets and debts of the estate). They are also responsible for organising the funeral, distributing the estate and closing the estate.
Administrator
We’ll start with a fun fact: a Will is still valid if no executor is appointed (but it’s a good idea to appoint one anyway, to avoid problems down the line!) If there is no Will or a Will does exist but no executor has been appointed, an administrator is appointed by the court. This is known as Letters of Administration, with the responsibility typically falling on the person who is set to receive the largest share of the deceased person’s estate.
Technically, the administrator is the name given to the legal next of kin who has completed the process of obtaining a Letter of Administration. True to their title, the administrator then assumes control over the administration of the estate and its assets.
Next of kin
Next of kin is not a legal term in Australia, but it refers to a person’s closest living relative or spouse. A person’s next of kin is usually the first person who is notified if anything happens (unless another emergency contact is listed).
If the deceased died intestate (without leaving a valid Will), the next of kin is then responsible for making important decisions, such as funeral arrangements, legal decisions and managing the estate.
A note on powers of attorney (POA)
While there are different types of powers of attorney (such as a general power of attorney and an enduring power of attorney) the main purpose of appointing an attorney is to ensure you have someone you trust making decisions on your behalf when the time comes that you can't handle your affairs effectively. This typically happens when you're on a long overseas trip, indisposed, or facing challenges managing things due to medical reasons.
However, a POA only relates to decisions made on your behalf during your lifetime. These powers end upon death. So, unless the same person is nominated as an attorney and then the executor of one’s estate, an attorney cannot make decisions on behalf of the deceased.
Wrap up
Taking on a role like an executor, an administrator or next of kin is no small feat, but they are all important roles to play when someone close to you dies. Remember that if you are named as an executor, administrator, or next of kin or are asked to be a power of attorney, you can turn down the role (other people can step in to shoulder the responsibility; it’s certainly not set in stone!)
If someone close to you has passed away and you’re looking for some help with Letters of Administration, Probate or support arranging their funeral, give our team a call at 1300 945 533.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, medical, accounting or tax advice.
