Distributing the Property

Distribution of Gifts

When gifts are made in a will, the obligation on the executors of the will is to distribute such gifts. However, beneficiaries do not have any right to the property of the deceased up until the actual distribution. 

Maintenance

There can be problems where a beneficiary is dependent on the deceased’s estate for income. The Wills Act makes provision for this in allowing personal representatives of the deceased (such as the executor) to make maintenance distributions if there is a 30 day survival period specified in the will before a beneficiary can take their gift. The distribution must be in good faith. If the beneficiary survives the testator for 30 days, the maintenance distribution will be deducted from their share of the estate. If they do not survive the testator for 30 days, the maintenance distribution will be classified as an administration expense (s64, Wills Act).

Payment of Debts

Before any of the estate can be given to beneficiaries, the debts of the deceased must be discharged. 

Legal Actions of the Deceased

Legal actions by and against the deceased (with some exceptions) may continue after the death of the deceased. This includes such actions as workers’ compensation actions.

Insolvent Estates

Rights of creditors

Where a deceased dies insolvent, the estate can be declared bankrupt, just as if the person was still alive. Before any debts can be discharged, the priority of the estate is to pay the funeral, testamentary and administration expenses (Schedule II, Part 1, s1, Administration and Probate Act 1935). But, the real and personal estate (‘real estate’ being houses, etc, and ‘personal estate’ being other items) of the deceased are assets for payments of debts before they can be disposed of in accordance with the terms of the will (s32, Administration and Probate Act 1935).