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1. THE OBLIGATION TO KEEP ACCOUNTS
If you are an executor or administrator, you have a duty to:
Every executor or administrator is under a duty to keep a record of how they administer the estate (probate accounts) and to report to the beneficiaries. In most estates it is not necessary for the probate accounts to be filed with the Court or for them to be passed (or approved) by the Court.
Passing of probate accounts is a process by which a registrar checks the accounts and verifies that they accurately reflect how the executor or administrator has managed the estate, and that it is in accordance with the terms of the will (if applicable) and the relevant law.
2. FILING ACCOUNTS
Probate accounts can be filed with the Court and will be placed on the relevant probate file. The accounts should be prepared in the form of the affidavit that is found at the end of UCPR Form 150. The Motion and filing fee is not required if you are merely filing the accounts and not seeking an order for the accounts to be verified and passed by the Court. Filed accounts can be inspected by beneficiaries.
Section 85 of the Probate and Administration Act 1898 (PAA) provides that verified probate accounts need to be filed in certain circumstances including:
It may also be prudent for an executor or administrator to file probate accounts if there is expected to be a dispute in relation to how the estate has been managed.
If an executor or administrator would like the accounts to be passed by the Court the motion and affidavit contained in UCPR Form 150 must be completed and filed in the registry accompanied with the motion filing fee. As a matter of current practice, the Court does not usually require accounts to be passed unless there has been a request by a beneficiary, or the executor/ administrator is applying for commission or the Court has made an order for the passing of accounts in a particular estate.
An application to pass accounts and seek commission is made by filing a motion and accompanying affidavit in the subject probate file. The approved form is UCPR FORM 150.
UCPR Form 150 includes the form of the Notice of Motion and the affidavit which sets out the required categories of information for probate accounts and prompts the supporting documents.
Before passing the accounts the Registrar may disallow any disbursement in part or in whole and require the executor or administrator to reimburse the estate for the amount disallowed (see section 85 (4) of the PAA).
In proceedings to pass accounts, the Registrar cannot determine issues such as:
These are matters appropriate to a separate "administration suit" in the Equity Division of the Supreme Court (for example an appropriate application by summons under Part 46 or Part 54 of the Uniform Civil Procedure Rules (UCPR)).
The bills for all professional work must be provided. The Registrar will verify that the bills do not include charges for non-professional work that is executorial in nature. If it is found that the bills include non-professional work, the executor may be ordered to reimburse these amounts to the estate. The Registrar will also moderate a reasonable amount that can be paid from the estate for the professional work that has been undertaken for the estate.
Receipts for any distributions to beneficiaries, including any assets transferred in-specie to a beneficiary, must be provided.
Bank statements showing the closing balance as at the end of the accounts must be provided.
The Registrar may require such additional receipts or other evidence of transactions shown in the accounts and if appropriate, may raise a requisition for further information.
Costs relating to preparing and passing the accounts and in relation to the application for commission should not be included in the accounts or paid from the estate before the accounts are passed. Such costs will be fixed separately by the Registrar as part of the order passing the accounts and allowing commission.
If an executor or administrator is seeking commission, information and evidence in support of commission should be included in a separate affidavit. This information may include a summary of the steps taken in administering the estate, setting out any specific complications or difficulties that were encountered and any other matters that you think may be relevant in determining the commission that should be allowed.
In determining what should be allowed for commission, the Registrar will consider all relevant matters including:
Commission is discretionary and will depend on the circumstances of each estate. Commission may be awarded as a lump sum or as a percentage rate. The following ranges of percentages for commission are a guide (only) as to what might be allowed.
The Probate Accounts: Guidelines can be found here (PDF, 140.7 KB).
The Court rules in relation to applications to pass accounts and for commission are set out in Part 78 Division 11 of the Supreme Court Rules. The rules can be found here.
The Probate and Administration Act can be found here.
The Schedule of Court Fees can be found here.
The following judgments provide some guidelines in relation to application for commission:
If further information is required before the accounts can be passed the Registrar will raise a requisition asking you to provide additional information or documentation.
16 Jan 2024
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.