administrator

What is the role of an executor?

An executor is the person appointed by a Will to administer a person’s estate when they die.

The role of an executor is basically to ensure the deceased person’s debts are paid and that their assets are dealt with as is stated in the Will.

The first task for an executor, after tending to any funeral arrangements, is to secure the assets of the estate such as cash and jewellery. The next task is to obtain a grant of Probate.

To apply for Probate, the executor needs to determine what the assets of the estate are (so that your lawyer can prepare an Inventory of the estate property) and what liabilities the deceased person may have. This often involves searching the deceased’s person’s records and liaising with their accountant and financial advisors.

Following that, steps such as making life insurance claims, notifying banks, superannuation funds and checking the insurance status of large assets are taken. Some assets may need to be sold and tax returns may also need to be lodged.

The specific steps that need to be taken will to a large extent depend on the terms of the Will and the deceased person’s assets and liabilities.

Usually an estate is administered within 12 or so months of the date of death however things such as claims for family provision orders under the Succession Act and other matters adding complexity can delay this.

What if the named executor has passed away?

If a named executor has passed away, then depending on whether they obtained probate before their death, either that executor’s executor or any substitute executor named in the Will takes over.

If there is a Will but there is no person named as executor or no named executor or alternate executor that is alive, then Letters of Administration with the Will annexed can be applied for and the Court appoints an administrator (in place of an executor) to administer the estate as set out in the Will.

What if there is no Will?

If a person dies without leaving a Will, they have died intestate and the relevant legislation details how their estate is distributed.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date - LinkedIn | Facebook | Instagram

in Estate Planning / Probate / Superannuation / Tax Planning / Trusts  by 01 Jul 2024 0 comments

Deed of Company Arrangement

A Deed of Company Arrangement (DOCA) is a proposal put forward by stakeholders, usually the directors, whilst the company is in administration so as to give a return to creditors better than they may receive in a winding up.

Importantly, a DOCA avoids the need to place the company into liquidation and allows the company to continue to trade with control of the company ultimately going back to the directors.

DOCA arrangements are flexible in that they can provide for may forms of payment from a lump sum or a payment by instalments of a fixed amount of based on net profit.

A Deed of Company Arrangement and must be signed within 15 business days of the 2nd creditors meeting (unless this time is extended by the Court), otherwise the company must be placed into liquidation, with the administrator becoming the liquidator.

Prior to execution, a DOCA must be approved by at least 50% of creditors by number and in value of amounts owed. Once signed, DOCAs are binding agreements between the company and its creditors and the administrator is in control of the company.

If entered into, a DOCA subsists for as long as its terms provide, until the obligations in the DOCA have all been met or until Court order.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date - LinkedIn | Facebook | Twitter | Instagram

in Business / Commercial Law / Debt Recovery / Dispute Resolution / Insolvency & Bankruptcy / Litigation  by 01 Apr 2022 0 comments

Voluntary Administration

Voluntary Administration (VA) is a process that enables insolvent companies to satisfy their debts. Once an administrator is appointed, the administrator can assist the company to trade its way into a healthier financial position with a view to either the company:

(a)    being placed back into the director’ control,

(b)    entering into a Deed of Company Arrangement (DOCA) or

(c)     being placed into liquidation.

Administration begins generally when the company directors (not the shareholders) resolve that the company is or is expected to become insolvent (but it can commence when a liquidator believes that that a proposed DOCA may give creditors a better return that liquidator or if a secured creditor has a right under their finance arrangements to appoint an administrator).

During a Voluntary Administration, the directors lose all control of the company and the administrator assumes sole responsibility the assets and affairs of the company.

There are 2 creditors meetings in a Voluntary Administration, the first within 8 business days of the administrator being appointed and the second, within 30 business days of that date. At this second meeting, the creditors determine the company’s fate – choosing either to enter into a DOCA if one is proposed or liquidation.

Secured creditors can exercise their security in a VA but must do so within 13 business days of the administration commencing. Unsecured creditors are unable to enforce their claims during the moratorium period that exists during the administration.

During the administration period, any guarantee of company debts cannot be enforced against a director etc.

VA ends on the entry into of a DOCA, if the creditors so resolve, if the company is placed into liquidation or if the Court orders it to end.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date - LinkedIn | Facebook | Twitter | Instagram

in Business / Commercial Law / Debt Recovery / Dispute Resolution / Insolvency & Bankruptcy / Risk management  by 01 Mar 2022 0 comments

New eligibility rules for .au domain names

On 12 April 2021, the .au Domain Administration Rules: Licensing (Rules) took effect, consolidating in excess of 30 policies and guidelines which previously applied to all “.au” domain names.

The Rules apply to all registrants who create, transfer or renew a domain name with a “.au” country code Top Level Domain (ccTLD) and the registrars who administer those domain names. The new Rules affect .au namespaces created, transferred or renewed after 12 April 2021.

This includes the following open namespaces:

  • “.com.au” and “.net.au” for commercial entities;
  • “.asn.au” for incorporated associations, political parties, trade unions, sporting and special interest clubs;
  • “.org.au” for charities and non-profit organisations; and
  • “.id.au” for individuals who are Australian citizens or residents.

.au Domain Administration Limited (auDA) is the administrator and policy body for the .au ccTLD.

Existing domain name licences expiring after 12 April 2021 continue to be governed by the legacy licensing rules applicable at the time of registration or last renewal until the current licence period ends.

Accordingly, if you had already registered a domain name before 12 April 2021, then the Rules will not apply to that domain name until your current licence period expires and you renew that domain name, or you transfer it.

Any proposed registrant applying for any “.au” domain name licence must:

  1. have an “Australian presence“; and
  2. satisfy any eligibility and allocation criteria

Australian presence

To prove an Australian presence, a registrant can show either that they are:

  • in Australia (such as an Australian citizen or permanent resident, entity with an ABN, incorporated association, partnership, a company registered in Australia under the Corporations Act) etc; or
  • the owner of, or applicant for, an Australian registered trade mark.

Eligibility and allocation criteria

An intended registrant with an Australian presence must also satisfy any eligibility and allocation criteria for the relevant namespace.

Those name spaces are open to registrants who are a “commercial entity” (including Commonwealth entities, statutory bodies, incorporated limited partnerships, trading co-operatives and the government) who apply for a domain name which is:

  • a match or acronym to the registrant’s name;
  • a match to the registrant’s Australian registered trade mark; or
  • a match or synonym to the registrant’s goods, services or premises or an event they sponsor or activity they facilitate, teach or train

For Australian present registrants, a match is defined to mean a domain name that is identical to one, some or all of the words or numbers used in the applicant’s legal name, business name or Australian trade mark. While words or numbers may be omitted, they must be in the same order and must not include any additional words or numbers.

Previously, for foreign entities, a domain name could be “closely and substantially connected“ to the registrant’s trade mark however, the Rules now require an “exact match“ to the words which are the subject of the trade mark registration (excluding trivial items such as punctuation and articles such as “a”, “the”, “of” or “&” etc).

Renting or leasing domain names

Under the Rules, registrants are not allowed to rent or lease their domain names to a third party.

This excludes companies who license domain names held by related bodies corporate (provided they still meet the Australian presence requirement).

What to do for renewal?

If the requirements of the Rules and not satisfied, the licence for that domain name may be suspended or cancelled by the registrar or auDA.

If that domain name registered before 12 April 2021, you can use the time before renewal to assess whether it will comply with the Rules at renewal time and if it doesn’t, you can adopt an appropriate strategy as required.

This may include:

  • Shore up your Australian presence (this is especially so for our clients that are based overseas) by having an entity registered in Australian or obtaining trade mark in Australia.
  • Apply for your business name to be registered an Australian trade mark (this has the added benefit of you owning your name so others can’t use it – remember simply registering a business name gives no ownership in the name at all)
  • Registering a new domain name that does exactly match your name or trade mark.
  • If there is a domain name that does match your name and it is already registered by someone else, you can consider lodging a complaint to the registrar or through the .au Dispute Resolution Policy. Note that they may have a legitimate right to the same domain name as you.
  • Check who the domain name is registered to – is it in your name or your business/company’s name?
  • Consider if your IP/domain name licensing arrangements are such that you rent or lease a domain name to or from a company who is not a related body corporate connected to Australia – if not it may need to be transferred.

FURTHER INFORMATION

For further information regarding the new eligibility rules for .au domain names or in relation to any commercial law issue, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date - LinkedIn | Facebook | Twitter | Instagram

 

in Asset Protection / Business / Commercial Law / Dispute Resolution / Intellectual Property / Online Issues  by 15 Jun 2021 0 comments

No Will – dying intestate

If you were to pass away without leaving a Will, then your estate will not necessarily pass to the people that you may wish to benefit.

Dying without a Will in place is called dying “intestate” and the ultimate beneficiaries of your estate will miss out on important and valuable benefits that could have been provided had you put in place a Will such as asset protection and tax minimisation opportunities like those in Testamentary Trusts.

Making an application to the Supreme Court to deal with the estate of a person who dies intestate is similar to seeking a grant of Probate but it is called applying for “Letters of Administration”. If a Will is left but fails to appoint an executor, it is “Letters of Administration with the Will Annexed” but at least then the Will would explain who you want to benefit following your death.

In addition to the Summons, Inventory of property and Affidavit of Administrator, things that need to be provided to the Court include: proof of enquiry into the existence and whereabouts of any Will; the identity of the deceased’s eligible relatives (death, birth and marriage certificates); proof of notification of the application to interested persons; an affidavit regarding the relationship status of the deceased; and possibly provision of an administration bond.

The reason for this evidence of a spouse/domestic partner is that the law provides for a formula as to how an intestate estate is to be divided and a lot depends on the marital relationship of the deceased.

Chapter 4 (sections 101-140) of the Succession Act 2006 (NSW) provide that the statutory order of inheritance in relation to an intestacy is:

RELATIVES LEFT

 ​ENTITLEMENT

A spouse and no children

The spouse is entitled to the whole of the estate.

A spouse and child(ren) from that relationship

The spouse is entitled to the whole of the estate.

A spouse and child(ren) from a that (or a previous) relations​​hip

The spouse is entitled to receive:

  • the personal effects of the deceased;
  • a statutory legacy of $350 000;* and
  • half of the residue of the estate.

The spouse also has a ‘right to elect’ to acquire property from the estate.

All of the deceased’s children, including children^ from previous relationships and from the current spouse (whether they are from a previous relationship or from the spouse) are entitled to equal shares of the other half of the residue.

Multiple spouses

The spouses are entitled to equal shares of the estate (unless varied by Order or agreement between them). There may be more than one spouse if the deceased was married and had one or more domestic relationships/de facto spouses. Children get nothing in this case.

Children only (no spouse)

 The children are entitled to equal shares of the estate. If a child of the deceased has already died leaving children (ie, the deceased’s grandchildren), the grandchildren are entitled to their parent’s share in equal shares.

No spouse or children

The deceased’s parents are entitled to equal shares of the estate.

No spouse, children or parents

The deceased’s full and half blood brothers and sisters are entitled to equal shares of the estate.

No spouse, children, parents, brothers or sisters

The deceased’s grandparents are entitled to equal shares of the estate.

No spouse, children, parents, brothers, sisters or grandparents

The deceased’s full and half blood aunts and uncles are entitled to equal shares of the estate.

No spouse, children, parents, brothers, sisters, grandparents, aunts or uncles

The deceased’s first cousins are entitled to equal shares of the estate.
No spouse, children, parents, brothers, sisters, grandparents, aunts, uncles or cousins

The State government is entitled to the whole of the estate.

* Adjusted by CPI. If this amount is not paid within 1 year from the date of death, the spouse is also entitled to receive interest on this amount.

^ Children who are not legally the children of the deceased (eg, step children) are not included. Adoptive children are included.

Special rules also apply in relation to indigenous persons.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to probate, letters of administration, estate planning or business succession, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice.

Please contact McKillop Legal to discuss your needs. Stay up to date – LinkedIn | Facebook | Twitter

in Dispute Resolution / Estate Planning / General / Probate  by 01 Oct 2019 0 comments